Litigation as an instrument for social change – laying the foundations for DFF’s litigation support

By Nani Jansen Reventlow, 29th November 2017

A closer look at strategic litigation, part 1:

Litigation as an instrument for social change is getting plenty of news coverage these days. Whether it’s challenging Brexit, standing up for press freedom, or tackling climate change, lawyers are part of the forefront of many of the battles currently being fought. Litigation to bring about social change and enforce civil and human rights – strategic litigation – is in high demand.

While historically not labelled as “strategic litigation” – a term often associated with the United States – many European countries have a proud tradition of social lawyering. And, as I mentioned in my previous blog post, there are some good recent examples of impact litigation on digital rights on the continent.

But what makes litigation strategic? And how does it fit in with other instruments for change: advocacy, lobbying, and the political “inside game”? These are questions DFF is diving deep into as we plan how to operationalise its mandate to advance digital rights in Europe by supporting strategic litigation.

There are multiple examples of impressive strategic cases. One was recently fetchingly represented by RadioLab in an episode of More Perfect, a podcast that takes a closer look at seminal US Supreme Court cases. The “Sex Appeal” episode recounts how Ruth Bader Ginsburg, now a justice on the Supreme Court, during her time at the ACLU managed to get that same Court to extend the US Constitution’s 14th Amendment – which grants “equal protection of the laws” to all persons – to women. She carefully selected a case that would be well-received by an all-male panel of judges, cautiously crafted the wording of her legal argument and eventually managed to obtain an enormous victory for women’s rights.

Not all litigation is as neat and well-planned, however. Litigation can be messy, ad hoc, and as a litigator you sometimes have to make the most of a set of imperfect facts, an imperfect court and an imperfect plaintiff. That doesn’t mean that an imperfect or ad hoc case cannot yield positive results for a broader cause. In litigation, one has to be both ready to plan and wait, and be prepared to be opportunistic.

In light of these realities, we are carefully crafting the parameters for what should be considered “strategic” cases when it comes to the litigation activities DFF will support. Should a case have been meticulously planned from the outset or do “accidentally strategic” cases count as well? Does there need to be a reasonable chance of success in court? Can you litigate strategically in administrative procedures?

As we develop our grantmaking criteria, we will be reaching out to the digital rights community to get their input. We want to find a model that balances DFF’s impact-focused strategy with the day to day reality of litigation, and the need for a careful decision-making process with the need to keep the application process light and accessible for the busy litigators that could benefit from DFF’s support.

We will keep you posted of this process via our blog. If you want to weigh in and share your views, please get in touch.

This post is the first of a series on strategic litigation. Next posts:
– Just a lawsuit or a case for a cause: what makes litigation “strategic”?
– Connecting litigation with other efforts: strategic litigation as a tool in the toolbox