Castles, Cavaliers and Windows: Understanding Judicial Behavior and Legal Mobilization by Analyzing Governmental Positions in Litigation

Abstract

This paper joins the contemporary debate on the efficacy of transformative litigation (TL) to bring about social change. I argue that the success of litigation as a vehicle for social change largely depends on some form of cooperation on behalf of the governmental bureaucracy. Therefore, both judges and plaintiffs often seek to achieve some kind of cooperation on behalf of elements in government during litigation (such as by out of court settlements and consent decrees) in order to ensure implementation after the litigation is over. The paper discusses some examples of transformative litigation in the U.S. and Israel and offers a preliminary typology of techniques of governmental cooperation in TL. It also suggests that the commonly accepted distinction between litigation and implementation should be reconsidered since TL should be regarded as a continuing process of policy transformation by governmental agencies.

Keywords: Courts and social transformation; implementation; impact studies; Government Lawyers