Strategic Litigation

Why Litigating

Why litigating?

In countries with active civil societies,the interests of individuals or groups ofindividuals are often represented by specializednot-for-profit, professional, orother organizations that address the problemsof individuals in the context of theirown strategic aims. Some organizationsaddress one particular social or legal problem,such as contamination of the environmentin a region, resulting in a specificdisease, or the production and sale of adangerous product, causing injuries tochildren. Other organizations address the
social and legal problems that affect therights of a particular minority or interest group, such as Roma, women, children, or gays and lesbians. Still other organizations
address broader societal issues, such as the establishment of the rule of law or the protection of human rights, and pursue specific goals, such as the promotion of international standards through the legal defense of victims of human rights violations.

By taking a strategic case to court, apublic inerest organization is often at theforefront of efforts to achieve socialchange. It is important to note, however,that it is rare for the success or failure of apublic interest campaign to hinge on asingle case or decision. A negative resultin a case, for example, may reaffirm anunfavorable law or practice and therebydeepen the social problem, making it more difficult to address the issue successfully in the future. On the other hand, an unfavorable result in a particular case may, in retrospect, serve as an unfortunate but necessary step in a longer-term process to achieve lasting social reform.

As a result, most successful public interest groups adopt a comprehensive approach in pursuing their goals, and litigation is just one element of a wide range of options available to activists.

Initiating a strategic litigation campaign is clearly no simple task; not all causes of action aimed at producing social change are well thought out or part of a grander strategy or mission. Test cases are not always planned as such in advance. Many public interest litigation efforts emerge as a result of unplanned or fortuitous events. So, how does an advocate determine when litigation is the best strategy for achieving public interest goals? As mentioned  earlier and discussed below, most successful public interest efforts use a comprehensive approach, and litigation is but one of a number of components of the campaign. Questions to ask when deciding whether to pursue litigation in the
public interest include the following:

• Is there a law or regulation on the books that is not being applied or enforced?
• Has the application of a certain law by the courts or government officials been evenhanded, or has the application been arbitrary and inconsistent?
• Have there been significant or pervasive legal restrictions on the exercise of individual rights and freedoms?
• Do international standards exist that could be used to influence state action? 
• What is the likelihood that further clarification of the law(s) in question would have negative effects on the public interest problem?
• What resources (human, financial, political) are necessary to accomplish the public interest aims?