By Steven McCaffery
Strategic litigation can be a powerful tool for positive social change, but when is it the right investment for philanthropy? A new book draws on the international experience of successful campaigns and offers real-world lessons on avoiding the pitfalls.
From policing in New York, to classroom conditions in post-apartheid South Africa, the push for social change in the Republic of Ireland, and promoting peace in the post-conflict setting of Northern Ireland in the UK.
In all these cases and more, litigation was used as a tool to promote positive change, but success demanded the creation of campaigns that could reach far beyond the courtroom.
A new book ‘Strategic Litigation’ examines international efforts by funders and activists to use litigation as a tool to advance human rights and equality in the court of law, but also in the court of public opinion.
Produced by Atlantic Philanthropies the book includes case studies and resources aimed at activists, lawyers and for funders.
It examines the challenges in using litigation to promote positive change, but also reflects how it can yield powerful returns.
‘If you can change the law, then you change the way the whole system operates,’ says Martin O’Brien, former senior vice president for programmes for The Atlantic Philanthropies.
He now leads the Social Change Initiative, a non-profit promoting the effectiveness of activism and philanthropy in securing positive social change, but he oversaw much of Atlantic Philanthropies’ grant-making in support of strategic litigation around the world.
In an interview in the book he says: ‘I think it’s a bit of a myth that strategic litigation is always expensive and always takes a long time.
‘I actually think that if you look closely at this relative to other ways in which foundations invest their funds, investing in strategic litigation can often provide you with good value. Trying to secure those changes through other types of advocacy work may end up taking you a lot longer and may end up costing you a lot more money.’
Six case studies chart the efforts to reform discriminatory policing in New York City, the provision of Medicare in the US, the demands for fair education in South Africa, plus the fight for transgender rights in the Irish Republic.
There are also two significant cases from Northern Ireland, with court challenges over government provision for integrated education between Catholic and Protestant pupils, plus government failure to fulfil commitments on tackling poverty in the post-conflict society.
The critical factors in building strong campaigns include: co-ordination between like-minded groups, a strong link between the legal challenge and the individuals or communities at the heart of the case, plus the need for a long term strategy in circumstances where repeated court challenges may be necessary.
The case studies also suggest litigation can raise public awareness of issues and it can forge new alliances that can fuel campaigns into the future.
When it comes to the courtroom, litigants inevitably require strong legal arguments, supportive precedents, or statutory commitments which authorities had failed to fulfil. But aside from these formal legal tactics, the book finds that timing is also important.
‘I think it’s a good rule to view litigation as a last resort, not as a first resort,’ Martin O’Brien tells the book.
‘I think people’s cases are often strengthened by the fact that they can say, ‘Well, we tried. We met with the government on 15 occasions. The government made all of these promises to us. They failed to deliver on any of them and now, reluctantly, we are going to court’.’
He adds: ‘If you’re a funder looking to bring about large-scale systemic social change, strategic litigation can be a very important tool. The law shapes and influences public policy and practice. It influences people’s behaviour. It influences the way in which money gets spent.’
Steven McCaffery is Communications Strategy Executive at Social Change Initiative
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