Crowdfunding Public Interest Judicial Reviews: A Risky New Resource and the Case for a Practical Ethics
Public Law (Forthcoming)
25 Pages Posted: 19 Oct 2018
Date Written: September 30, 2018
In the context of judicial review in the UK, traditional funding for litigation have become less available in recent years. While it is important to recognise that the relationship between money and access to judicial review is a densely complex one, many now claim that funding a judicial review is increasingly difficult. In this space, crowdfunding — using an online platform to raise third-party funds for litigation — has become an increasingly-used tool, with many public interest challenges now being funded by this method. There has, however, been no systematic analysis of this phenomenon in the UK, and relatively little internationally.
In this article, it is considered whether crowdfunding is a possible answer to the increasing scarcity of traditional resources in the context of public interest litigation in the UK. In other words, can crowdfunding support reform through the provision of resources for public interest litigation? The question of whether this mode of litigation funding ought to be encouraged or whether it is problematic is also addressed. I argue that crowdfunding can — in certain cases — solve the resource dilemma and, ultimately, be useful in procuring reform. However, it is far from a foolproof solution and there are multiple risks inherent in its use. The nature and extent of these risks are such that the crowdfunding should be approached with great caution. It is therefore suggested here that we need to build a practical ethics of crowdfunding in this context.
The analysis in this article has four main parts. The first part explains the present funding context for judicial review in the UK. It is imperative this context is understood as it provides the conditions in which crowdfunding has grown. The second part of this article introduces how crowdfunding works, how it has become increasingly relied-upon as a method for funding judicial review cases, who the key actors are, and examples of crowdfunding in action. The third part of the article considers the main benefits and risks of the increased role crowdfunding is playing in the UK. The final part of this article sets out the case for developing a practical ethics for crowdfunding public interest litigation and sketches out the form that such a practical ethics may take.
Keywords: judicial review; crowdfunding; public interest litigation; strategic litigation
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