Abstract

AbstractWith strategic litigation, lawyers and public interest NGOs have sought to bring socio-structural problems before courts around the world for many years. In doing so, they (a) initiate legally substantiated lawsuits that (b) pursue goals beyond a legal process’ “success” and (c) address considerable political issues. Litigation strategists often strive to realise the judicial enforcement of human rights, environmental rights, trade union rights, migrant and refugee rights, and so on, in these proceedings. In other words, they seek to make the law “better.” It is precisely here that legal mobilisation’s structural limitations—also present in the day-to-day business of law—come to light in the context of strategic litigation.

Highlights

  • With strategic litigation, lawyers and public interest NGOs have sought to bring socio-structural problems before courts around the world for many years

  • Fischer-Lescano struggles or revolutions; all they need is the right lawyers on their side who code their assets in law.”3 This criticism of state institutions applies to strategic litigation, which often begins too late, addresses ineffective forums and reduces critical legal policy disputes to court battles

  • The adjective “strategic” with which litigation activists describe their practice is regularly used either in a trivial sense—all litigation could be classified as “strategic” after all, as most decisions about legal proceedings are made with clear goals, based on rational reasoning regarding how to achieve them—or the protagonists overestimate strategic litigation’s foreseeability, underestimating the fact that its unpredictability is a central element of the legal process

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Summary

Critique of Strategic Litigation

The concept of strategic litigation comprises a strangely narrow approach. The term “litigation” reflects that the law is part of the social crisis to be addressed. A. Fischer-Lescano struggles or revolutions; all they need is the right lawyers on their side who code their assets in law.” This criticism of state institutions applies to strategic litigation, which often begins too late, addresses ineffective forums and reduces critical legal policy disputes to court battles.. As Adam Weiss rightly observes, a process’ strategic consequences often cannot be anticipated, only evaluated retrospectively, which raises the question of what criteria should be used for this evaluation Answering this question often abruptly leads into a circle of self-righteousness. Litigation strategists measure their “success” against their strategy concept, which they adjust over the course of the process. Regardless of a court case’s outcome, these “legal miracles” confirm all parties’ legal opinions This is possible due to vaguely formulated strategies. Make it more than clear that conceptual strategy development problems arise that reduce strategic litigation’s effectiveness in fighting injustice

Lack of Ambition
Depoliticisation
Advocatory Violence
Victimological Defensiveness
Juridical Action
First Step
Second Step
Legal Action Against the Far Right
Decentralisation
Culture of Dispute
Conclusion
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