The Limits of Strategic Litigation

Abstract

The model of marriage equality litigation that has dominated discussion to date is the carefully planned public interest lawsuit. In this model, gay rights organizations try to figure out which courts are most likely to be receptive to their claims, then recruit plaintiffs to challenge the laws on the books, and file suit.

There is, however, another model that will be increasingly relevant. That is the situation in which parties who had no interest whatever in being public interest plaintiffs find themselves unexpectedly trapped in an evil legal system that threatens to treat them in a viciously arbitrary and unfair way.

The next major wave of marriage equality litigation will involve substantive issues of choice of law. The most powerful choice of law claims will be those involving unfair surprise. And they can't be planned for.