What is Strategic Litigation?
01 June 2015
There are no strategic litigation ‘experts’, even at the ERRC. The next time someone at a conference (especially someone from the ERRC – especially me) is billed as a ‘strategic litigation expert’, hold up your hand and read out some key lines from this blog. We are practitioners, and at best, clever gamblers working with few rules and aiming for unlimited winnings.
Legal geniuses need not apply
There are of course litigation experts and experts in various fields of law. But those brainy lawyers are not cut out for the work the ERRC’s legal department is doing. To borrow an analogy from Nassim Nicholas Taleb, an author who has me thinking a lot about our work lately, asking brilliant legal experts to run a strategic litigation practice “is like developing a medicine for plants and applying it to humans”. These scholar-practitioners could make a huge difference in legal-aid clinics and neighbourhood law centres (work that is indisputably vitally important); but in a law practice with limited resources trying to secure a handful of judgments that will change the situation of millions of people, these geniuses could prove worse than useless.
Black Swans in the courtroom – a definition of strategic litigation
They are useless because they are lawyers to the core, and inevitably see their job in terms of two concepts: prediction1 and representation. These lawyers might accidentally bring a case that people will later call ‘strategic’, but everything in the way they behave works against it. They will talk to you about client obligations and the primacy of ‘following instructions’, not realising that litigation driven by self-interested clients can only be fruitful in far bigger numbers than a strategic litigation practice can manage. They will pooh-pooh ‘less-than-perfect’ cases, adamantly predicting what the judges will say without realising that what creates strategic impact is beyond what any judge (let alone lawyer) can currently conceive the judgment will say, or what it will do, or what will happen as a result. Doing (taking offbeat cases with open-ended positive potential) is far more important than thinking (endlessly designing ‘perfect’ cases with outcomes any expert can predict).
Current definitions of strategic litigation are not helpful in getting litigators to do this work properly. They suggest that strategic litigation is about squaring individual client interests with larger social goals2 (in fact, it is only about the latter), or about changing policy3 (when it is actually about turning the world of policymakers upside-down). I derive my own definition from Nassim Nicholas Taleb’s The Black Swan.4 To me, strategic litigation means trying to secure legal judgments that:
- the defendants (and those like them) were previously incapable of imagining;
- have an enormous impact outside the courtroom (e.g. by forcing someone to pay a lot of money or dismantle an entrenched system that affects many people);
- and seem explainable and predictable only in retrospect.5
That last point is so important: Roma (or whoever benefits from the litigation) need to be able to make these cases part of their emancipation story, so that litigation becomes part of the movement. Strategic cases are unforeseen for the oppressors and “retroactively inevitable” for the liberated.
D.H. and others v Czech Republic and Winterstein and others v France
Litigation is fractal: a single judgment can dwarf the combined impact of all or almost all other cases (like the way a mountain can dwarf the combined size of all nearby rocks, or a single day in the stock market can wipe out decades of gains). I do not (mostly) mean this in terms of money (amount of damages), but rather in terms of the other forms of impact people practising strategic litigation try to achieve. One case out of a thousand will be the one that stops the government’s mass surveillance programme, requires registrars to marry gay couples, or exposes and condemns school segregation.
School segregation is our Black Swan, of course: the impact of D.H. towers over our other cases, most of which have ended up in our case cemetery.6 Indeed, every D.H. emerges alongside a cemetery of lost, abandoned, or otherwise ultimately unimportant would-be D.H.s (and we proudly have many of those). That is why there is no such thing as a strategic litigation expert: because we are trying to create the next big unpredictable judgment, we cannot really predict it ourselves. We can only create the environment from which it is likely to emerge alongside lots of failures. We engage in trial and error: we test out dozens of legal theories and cases before multiple jurisdictions. Our main skill is reducing the risk to individual clients (often by not having any) and to the movement we serve, while exposing that movement as often as possible to the possibility of a Black Swan legal event. Such an event is a judgment the judge did not imagine she would ever deliver. The lawyers acting for the defendant will spit up their morning coffee when they read it. You probably get one of those for every 200 cases in our office (based on my almost two years’ experience at the ERRC).
D.H.’s own history illustrates this beautifully (but only partially). The racists who engineered a system of diverting large numbers of Romani children into special-education schools thought, in their warped worldview, that they were doing right by the Roma: better to have them in some school than no school at all, and this was all the Roma children could handle. It was obvious to everyone what they were doing – the perpetrators were not ashamed. (I like to call this kind of people ‘Victorian racists’.) They might vaguely imagine getting some award from a European institution for their work, but they could hardly conceive of a Strasbourg judgment condemning their system as a massive human rights breach.
The judges in Strasbourg at first agreed with the racists: a Chamber of them ruled (six votes to one) that there was no violation of the Convention. Were those six judges stupid? No, they were behaving predictably. Some legal expert would probably have predicted this ‘safe’ outcome and told us not to bother. Was the ERRC lucky that the Grand Chamber (by thirteen votes to four) disagreed? Yes. But we (or rather, our predecessors) created this luck by trying on a questionable case with the possibility of such a high payoff for Roma rights.7 Any legal expert who thinks the D.H. judgment was inevitable should read the Chamber judgment again.8
At the same time D.H. was exceptional: it was a big bet (we invested more heavily in it than we do in most cases), with, at first glance, a big downside risk: if the Chamber judgment had stood or been confirmed by the Grand Chamber, it would have amounted to judicial ratification of a nasty stereotype. I still think it was a good bet: a discriminatory judgment from Strasbourg would have been a lightning rod for criticism, opening a debate, and (perhaps) eventually being reversed.9
There are smaller bets with big (but not such big) payoffs and lower downside risks.
- We intervened as a third party in Winterstein v France (2013), a case about Travellers threatened with eviction from land they owned but on which they were not allowed to keep their caravans (very unlike most of our cases of Roma facing eviction). The Court went so far as to confirm “the necessity, in the event of the forced eviction of Roma and travellers, of providing them with alternative housing, except in cases of force majeure”. That finding goes far beyond the situation of Travellers in caravans, with potentially massive impacts on the thousands of Roma evicted from their homes each year in France (over 21,000 in 2013) and around Europe, few of whom are rehoused.
- After years of the ERRC and others pressing the European Commission to follow up the D.H. judgment by taking infringement proceedings against the Czech Republic under EU law, they finally did so, and in short succession also targeted Slovakia (which, unlike Hungary and the Czech Republic, has not been the subject of a Strasbourg judgment in this area). Hopefully this is the beginning of a wave of ‘unexpectedly inevitable’ infringement litigation against the many States that breach the Race Equality Directive.
What the ERRC is doing now
I won’t take you through our cemetery of similar, but failed attempts, but unless you are insanely lucky, every D.H.-type case is hiding a similar cemetery. The experts would pooh-pooh our current case list (most of which is destined for the cemetery). They would not see it for what it is: an attempt to expose the Roma rights movement to the windfall of a radical judgment whilst shielding it (and individual litigants) from the risks associated with losing.10 When we are working at our best, we are taking lots of bets, most of which will lose, with virtually no damage in case of loss, but with potentially catastrophic impacts on the discriminators and segregationists when they go in our favour. When we are not on form, most of our cases look like they were designed by legal experts to secure safe predictable wins that do little more than confirm what we already know about respect for Roma rights.
You can read more about how we are practicing strategic litigation right now here. In another blog I will explain how it works and how it relates to the way of doing things described here. Our working definition of strategic litigation focuses our minds on the improbable, high impact victory:
Strategic litigation at the ERRC means supporting legal cases designed to expose and contribute to the elimination of discriminatory structures that prevent Roma from enjoying full equality.
Discriminating structures are the hidden attitudes, processes and capacities that make the oppression of Roma automatic and unseen. You might expect a burglar to break your window or take a crowbar to your door, but you don’t expect someone to melt the foundation of your house (if you even ever remember that it has one). That is what we are trying to do to the racists.
Our case-by-case theories of change focus our minds on the radical behaviour changes we want to see: “Ministry of Education: shut down segregated schools and integrate Roma pupils elsewhere”; “Police commissioner: admit to and start a programme to address institutional discrimination”. If the change sounds unimportant (e.g. “reopen the investigation of one crime”), the case is probably not a good use of our scarce resources.
Our strategic litigation plane is perhaps the most important.
Cases to the “left” (driven by self-interested clients) are unlikely to lead to big pay-offs in small numbers, because they are fact-sensitive and people’s motivation changes, and the risks are big. We should invest in these early, by engaging proceduralist legal experts to take on a critical mass (which could range from 5 to 50 cases), or invest in them late, by identifying a case that has emerged through a proceduralist’s hard work and intervening in it as a third party to help it achieve radical change.
Otherwise we should be on the “right”, with litigants whose sole motivation is to see the case brought as designed, minimising the risk to any individual client (who is likely to be a hardened activist or, in an actio popularis, the ERRC ourselves) and forcing the judge to face the full mechanism of discrimination, increasing the likelihood that she ‘gets it’ and takes a radical decision, for example, to desegregate and/or really punish a discriminating agency. Our legal theories should usually be innovative, again to increase our exposure to a novel, unexpected event; but “lower right-hand” cases can also prove useful: the discriminators might not be expecting 1,000 of the same obvious judgment, costing them a fortune. Even the occasional “strategic loss” (where you know you will lose, a lower right-hand situation) might put pressure on the authorities by exposing a practice that, while not illegal, is painfully foolish.
Where this Blog is Going
This was meant to be the first (and probably the longest) in a new series of blogs under our “Legal Briefs” section designed to get Roma and those in the Roma rights movement excited about strategic litigation as a tool for Roma emancipation. We know we have a lot of work to do (most of it in the courtroom, and not on a blog) to make that happen.
- “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”. Oliver Wendell Holmes, “The Path of the Law” (1897). Holmes is a very important dead white judge from America. If he were still alive he would not be welcome in the ERRC’s legal department.
- “Strategic litigation (or ‘impact’ or ‘test’ litigation) is a form of public interest litigation where a case is pursued on behalf of an applicant or group of applicants, with a view to achieving a law reform goal beyond the individual case. While legal ethics dictate that the clients’ interests are paramount in litigation, strategic litigation seeks an additional social or political impact beyond the remedy sought by the individual”. Andrea Coomber, “Strategically litigating equality – reflections on a changing jurisprudence”, European Anti-Discrimination Law Review #15, November 2012.
- “By whatever name, [strategic litigation seeks] to use the courts to help produce systemic policy change in society on behalf of individuals who are members of groups that are underrepresented or disadvantaged – women, the poor, and ethnic and religious minorities.”
- Penguin: 2008. The book is not about law or litigation about all; most of Taleb’s examples are derived from finance. He mentions law once in a laundry list of fields that are starting to benefit from the ideas he has developed. It would be an enormous honour and probably a lot of fun (given how catty he can be) if he were to read this blog and tell me what is wrong with it.
- Taleb’s own definition of a Black Swan event: “First, it is an outlier, as it lies outside the realm of regular expectations, because nothing in the past can point to its possibility. Second, it carries an extreme impact…. Third, in spite of its outlier status, human nature makes us concoct explanations for its occurrence after the fact, making it explainable and predictable” (emphasis in the original).
- The cemetery is also Taleb’s concept: for every Casanova who has survived and thrived a series of life-threatening adventures, there is a cemetery full of those who did not. This is more about luck than skill or divine intervention.
- The disappointment with the implementation of D.H., in turn, has been a Black Swan for us: what human rights lawyer would imagine that it would be business as usual eight years after such a dramatic judgment?
- See also Oršuš v Croatia (all seven judges found no violation in the Chamber, 9 judges against 8 found a violation in the Grand Chamber).
- Compare, for example, Fretté v France (2000) (allowing States to prevent single homosexuals from adopting when single heterosexuals can) to E.B. v France (2008) (Grand Chamber, finding the opposite).
- This is similar to Taleb’s “barbell strategy”, referring to what I assume is now his signature approach to investment, except that in our case we are trying to provoke a Black Swan event, not simply benefit from it.