Impact-Orienting Digital Strategic Litigation

Abstract

There are a growing number of efforts to use strategic litigation, in order to establish or enforce rights in digital systems. The success of these efforts, however, is as often defined by the influence of the jurisdiction they choose to bring the case in, as they are the merits of the case. Many jurisdictions are in the process of defining their ability to set the norms for, and exact enforcement in internationally shared platforms. There are a number of examples of technically and politically complex judgments from authorities without the capacity or leverage to compel their implementation. While traditional and digital strategic litigation share many similarities, these significant, structural differences also play a critical role in shaping the design of strategic litigation and advocacy aimed at impacting the establishment or enforcement of rights in digital systems. This paper explores ways to design digital-rights-focused litigation, optimizing for impact and implementation.