'Defining Strategic Litigation' (2019) 4 Civil Justice Quarterly 407

Abstract

The practice and use of the term ‘strategic litigation’ has gained tremendous popularity, but remains surprisingly under defined. It is often used interchangeably with terms such as ‘public interest litigation’, ‘cause lawyering’, ‘impact litigation’, or ‘test-case litigation’. This rich terminological forest, while fascinating as a taxonomy of the various approaches to legal practice that one might group together under the banner of ‘lawyering for change’, casts a shadow of confusion over the emerging concept of strategic litigation. What exactly does the term describe? What is the place of strategic litigation in the semantic legal field of lawyering for change? This article analyses a survey of the use of strategic litigation by academics, practitioners and activists, and compares it with pre-existing concepts related to the underlying idea of using the law for legal or social change. This review supports the proposition that while there is overlap between strategic litigation and other forms of lawyering for change, it is possible to plot an independent path for the concept. This article identifies four main features of ‘strategic litigation’: (i) an extrinsic legacy component - it seeks outcomes with a long-term impact, going beyond the origins of the claimant’s complaint; (ii) it is a method of advocacy rather than a cause, and therefore adaptable to a range of purposes; (iii) its objectives are similarly multi-faceted and go beyond creating effects within the court system; (iv) it views ‘litigation’ broadly, to include tribunals and international mechanisms of redress. This analysis suggests that the emergence and durability of strategic litigation reveals more broadly the modern trend towards transnational legal activist movements actively supported by civil society organisations.

Keywords: strategic litigation, lawyering for change, public interest litigation, test case litigation, cause lawyering