Erika Dailey on the Implications of Strategic Human Rights Litigation

At the February 20, 2020 Human Rights Workshop, Erika Dailey discussed the importance of assessing the impacts of strategic litigation in order to use it more effectively. Dailey, the Senior Officer for Research at the Open Society Justice Initiative, focused her talk on a five-volume series study conducted by the Open Society Justice Initiative evaluating the effectiveness and limitations of strategic litigation.

The Open Society Justice Initiative (OSJI), Dailey explained, is a team of human rights lawyers who pursue strategic litigation in accordance with the values of the Open Society Foundations. Dailey described how the “heavily lawyer-oriented” OSJI “shared assumptions” about the value of strategic human rights litigation. Since the organization’s inception, they have litigated over 100 cases, and had long been motivated by the view that litigation is a key “tool for social change.” However, many, including Dailey, questioned whether their sense of the value of strategic litigation was overstated.

To investigate, Dailey described how the OSJI team created a methodology to conduct a “360 degree” look at litigation in “lived experience,” instead of rooting their investigation in an academic or theoretical understanding. By asking people “on the ground” how they felt about strategic litigation and how it had affected their own lives, Dailey’s team sought to answer the question: “What are the tradeoffs as we continue to pick up cases?”

The study analyzed four “deliberately diverse” areas of law and histories of litigation in 11 different countries. These areas included “equal access to education,” “desegregation,” “torture in custody,” and “indigenous peoples’ land rights.” Dailey conceded that it is “extraordinarily difficult to establish causal links between a case, a judgement, and the outcomes.” Still, she explained that “over the course of the interviews,” three key impacts resonated with interviewees, who ranged from judges to schoolchildren.

According to Dailey, the first and most clear impact that a human rights case can have on its stakeholders is material. She cited a situation in South Africa in which school activists and litigators launched a series of cases against the administrative body overseeing education, or the equivalent, to improve school infrastructure. In order to ameliorate what Dailey described as “mud schools with no sanitation or chairs,” several cases were launched, each one asking for a different improvement.

While one case sought to set a broad minimum standard for education facilities, others argued for specific, tangible improvements, such as textbooks, teachers, and chairs. The process, Dailey said, became “iterative” and gradually, the stakeholders were seeing tangible, material improvements, establishing a “direct causal link” between the cases and the community’s well-being.

Dailey also discussed the overdue need “to move away from a binary understanding of litigation” since, she said, a case’s judgement is not the sole determinant of its value.

“A lot of value can be derived post hoc,” even when the judgment seems at first unfavorable, Dailey said. She explained that even “failed” cases can provide “legal empowerment” and momentum for community organizers. As a result, Dailey argued, cases can offer “instrumental impact” through influencing the judiciary, laying groundwork for policy change, or establishing helpful jurisprudence. She added that NGOs often originate out of judgements.

Dailey also cited the “non-material” impact of litigation, arguing that a case can have “influence on people’s behavior.” The OSJI team, she recalled, observed that “communities that were hopeless, giving everything they could through letters and protests...felt vindicated by [having been given] a rallying point,” Dailey explained. “Opportunities for change arise throughout the process.” She emphasized that, in order to achieve this result, litigation must be pursued in “close coordination with social movements.” If used in isolation, she pointed out, lawyers run the risk of losing the opportunity to “impact people’s attitude and behavior.”

Strategic litigation presents its own risks and unintended consequences, Dailey said. “If you set a bad precedent, you haven’t done well by your cause, but a judgement is not a standalone result.” Instead, Dailey explained, a judgement is “multidimensional” — and even favorable results can have negative effects. Dailey cited the first of the five studies, “Strategic Litigation Impacts: Roma School Desegregation,” published in 2016, that analyzed efforts to end discrimination against Roma schoolchildren in the Czech Republic, Greece, and Hungary. Dailey recounted the study’s finding that, in response to a court decision favoring the Roma children, a petition “revolting against the decision” garnered 50,000 signatures in two weeks. As an unintended consequence of the case, teachers were often “doubly hostile and punitive” towards Roma children.

Dailey described some of the most effective ways to mitigate these risks and unintended consequences. She explained the importance of litigation as a means of “simply seeking information” in that it can be valuable to find evidence and establish fact patterns that “can be valuable for the cause” and later litigation.

She also emphasized the importance of communicating about the goals of a case. “People need to understand [a case’s] significance or it loses its value,” she said. “Courts should be used as theater in a way, whenever possible.” In the cases to improve conditions in South African schools, the Equal Education Movement helped place public pressure on the Ministry of Education to hold it accountable for the schools’ conditions by “wearing matching t-shirts with slogans,” “camping outside of courthouses,” and “putting masks on children with the Minister of Education’s face.”

She explained that it is a “tremendous advocacy opportunity to use a court as a space to articulate your demands.” It is necessary sometimes, she said, to involve people and the media. Otherwise, a case can “fall flat.” Because litigation, according to Dailey, is an “iterative process” rather than a “landmark process,” she believes that even if stakeholders receive a ruling in their favor, results will vanish without relitigation to push people to comply with the judgements made.

Dailey also explained the importance of having many different stakeholders invested in a case. She cited the Mau Mau Kenya Uprising from 1952 to 1960 during British rule that British officials called an "uprising.” Instead, she said, the “uprising” was a form of “political retribution” for the “discriminatory violence” Kenyans were facing during the colonial period. Thousands of Kenyans allege having been mistreated by British officials during the Mau Mau Uprising and thus have brought compensation claims against the British Foreign Office. According to Dailey, thousands of Kenyans “reached a settlement of around £20 million,” forcing the British government to “confront its colonial past.”

However, “nothing would have been done about it,” Dailey said, “had it not been for historical publications, attention from the Kenyan Human Rights Commission, and documentation and testimony.”

“It’s important to have different stakeholders working in the same direction,” Dailey said. Stakeholders can include international advocates, pro bono organizations, and NGOs, even if lawyers feel as though they are “personally invested” in the case.

“People want lawyers to be a part of the movement, to know what the stakes are,” Dailey said. This level of care, according to Dailey, “empowers people to fight for their own rights.”