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This article discusses the issue of abortion in the context of the dispute between progressive and neoconservative political forces in Brazil. The article analyses ADPF 442, a legal instrument known as a Motion of Noncompliance with a Fundamental Precept, which was lodged with the Supreme Court as part of a feminist litigation strategy in the country. The motion calls for the Supreme Court to decide on the constitutionality of the decriminalisation of abortion within the first 12 weeks of gestation. Methodologically, the analysis combines a literature review with participant observation and corpus linguistics analysis. ADPF 442 is considered a key event in the use of judicialisation to voice demands for women’s rights in current-day Brazil, and this work examines the testimonies as representative of the discourse and strategies at play in the broader field of abortion and its major actors, both for and against its decriminalisation.

Scholars and State counsels have often pointed out the fact that incidental proceedings could be abused, especially when they serve as dilatory mechanisms. While the International Court of Justice has never followed up on such claims, the recent interest in the concept of abuse of process may bring this issue back into focus. The purpose of the present article is to examine whether the notion of abuse of process could actually be applied in such cases, at a time when many types of conduct seem to be loosely labelled as abusive. It highlights the difficulties to reach such a conclusion as well as the necessity for clarification from the Court on what may constitute an abuse of process.

This article is innovative in providing a Blueprint for bringing the first international multi-party climate change case. The Blueprint allows for AOSIS member states to bring a number of group claims against a Respondent Pool made up of the world’s leading greenhouse gas emitters, before a variety of international bodies, on a variety of legal bases. International litigation presents substantial jurisdictional barriers, not least in regard to climate change litigation. It is these barriers that necessitate the group litigation strategy advocated for here. Specifically, the article envisages proceedings before the ICJ, ITLOS, and UNCLOS arbitral tribunals. The legal bases that the Blueprint requires are inventoried, however the focus is on the jurisdictional issues of the bodies. The practicalities involved in AOSIS bringing group cases before each body are explored and solutions for overcoming the jurisdictional barriers of each are offered. Ultimately, the article shows that the jurisdictional barriers are far from insurmountable, with the Blueprint allowing for all AOSIS member states to be involved in proceedings, before at least one body, against at least forty-eight respondents, including the US, China, and the EU.

Summary Arbitration is a form of conflict resolution that was popular in commercial disputes in medieval times. Its informal nature and ability to mediate the shortcomings of the formal courts have made it the supreme example of merchants solving their own disputes. However, there has been relatively little inquiry into its actual practice. This article investigates the functions and practice of arbitration in medieval Bruges, where arbitration was frequently used as a form of conflict resolution. This was not because merchants preferred extra-judicial proceedings, but because arbitration was a necessary procedure to deal with the shortcomings of the judicial framework of the aldermen of Bruges. Arbitration was exercised as a specific consequence of the context in which Bruges found itself in the second half of the fifteenth century. This context, however, also undermined the procedure. The ambivalent attitude of the Bruges aldermen towards arbitration and its impossibility to appeal allowed some undertaking merchants to use the procedure to their own benefit, and not necessarily to the benefit of commerce.

This article introduces a significant yet largely overlooked problem in the law of torts: causal underdetermination. This problem occurs when the causal inquiry of a but-for test produces not one but two results, which are contradictory. According to the first, the negligent defendant is the likely cause of the plaintiff's injury, whereas according to the second, she is not. The article explains why causal underdetermination has escaped the radar of tort scholars and is perceived by courts as lack of causation. It demonstrates that the current practice in cases of causal underdetermination might lead to erroneous decisions, absolving negligent defendants of tort liability even when the evidence suggests that they are in fact the likely cause of the plaintiff's injury. This, in turn, the article asserts, may not only lead to underdeterrence among potential defendants, but also encourage manipulative litigation strategy to escape liability in retrospect. The article then proposes solutions that contend with causal underdetermination and resolve the difficulties that the current practice entails.

It is exceedingly rare for one person to change the world almost single-handedly, but Justice Ruth Bader Ginsburg was one of those people. Even before her distinguished judicial career, RBG was a trailblazing advocate for women’s rights during the 1970s. She persuaded the Supreme Court that gender discrimination violates the Equal Protection Clause of the U.S. Constitution, winning five of the six cases she argued there. To lead this historic effort, RBG served as general counsel of the ACLU and as co-founder and the first director of its Women’s Rights Project from 1972 until she became a judge in 1980. How can we evaluate RBG’s performance in this role? If she had led a for-profit business, we could track its profits. But the test of a nonprofit’s success is not how much money it makes, but how much good it does in the world. To operationalize this somewhat abstract test, I have urged nonprofits to assess their work with three questions, which this Article applies to RBG’s impact litigation: First, how important was the problem RBG was trying to solve? Second, how effective was her response? Third, what were RBG’s comparative advantages in this work? To begin with the first question, RBG targeted an enormously significant problem. In the 1970s, gender discrimination had deep roots in U.S. law. Constantly encountering discrimination in her own career, RBG was emphatic that people should be judged by their ability, not their gender. Yet to advance this meritocratic vision, she had to change the way male judges thought about these issues. Second, how effective was RBG in pursuing this goal? She delivered extraordinary results, crafting a litigation strategy with three key strengths. First, instead of striving to accomplish all her goals in one case, RBG proceeded in stages, so that each new case built on the last one. Like a chess grandmaster, she thought several moves ahead. Second, RBG had a gift for seeing cases through the eyes of (skeptical) male judges, so she chose cases carefully, hunting for compelling facts. Third, ever mindful of her audience, she framed legal issues in ways that resonated with male judges. Along with targeting an important problem in an effective way, a nonprofit also should have comparative advantages in doing its work. This brings us to the third question: What were RBG’s unique strengths in leading the ACLU Women’s Rights Project? She had the courage to take controversial positions and the legal firepower to prevail. As both a successful professional and a devoted spouse and parent, RBG modeled her nonprofit’s mission in her own life. Yet although these issues were deeply personal for her, she rarely showed impatience or frustration. By temperament, RBG was unfailingly polite and collegial. She also knew that venting could set back her cause, and her goal was to do good, not to feel good. By combining this steely self-control with strategic thinking, determination, and eloquence, RBG was stunningly successful. In analyzing RBG’s record as a nonprofit leader, this Article draws not only on the historical record and RBG’s writings, but also on my own experiences with her. I served as her law clerk during the October Term 1994, her second year on the Supreme Court. Over the next twenty-five years, RBG was a generous mentor and a dear friend. We had countless conversations about her impact litigation.

This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.

The rising number of amicus curiae briefs filed in the U.S. Supreme Court has attracted increased scholarly attention to the effect of interest group advocacy on the Court. The substantial and growing participation by amici suggests that interest groups believe these activities are influential, and empirical evidence suggests they might be right. Earlier research shows that Supreme Court justices rely so heavily on information in amicus briefs, that they often signal their need for these documents to interest groups (Hansford and Johnson 2014). Moreover, previous works have found that amicus briefs do not just influence the justices' final decisions on the merits of a case (Box-Steffensmeier et al. 2013; Collins et al. 2013, 2015), they also affect the justices' decision to hear a case in the first place, namely to "grant certiorari" to a legal case coming from a lower court1 (Caldeira and Wright 1988; Owens and Black 2011). In addition, other studies suggest that amicus briefs may have a significant effect on the likelihood of dissenting opinions (Collins 2008a). Finally, the influence of amicus briefs appears to extend to all justices across the ideological spectrum (Collins 2008b). Nevertheless, the nature of their influence remains the topic of much disagreement among scholars. Why are amicus curiae briefs so influential? Do all interest groups stand the same chance of influencing all of the justices, or are some groups better positioned to influence certain justices in certain ways?We address these questions by extending Baily, Kamoie, and Maltzman's (2005) signaling theory beyond the Solicitor General to all interest groups filing amicus curie briefs in the U.S. Supreme Court. Specifically, we argue that amicus participation functions as a heuristic signal: Every amici sends a signal to members of the court, which includes heuristics, or "mental shortcuts," based on the filer's ideological preferences in relation to the justice's preferences and the brief's ideological position on the case. These heuristic signals help the justices deal with the high number of amicus briefs by allowing them to quickly and easily identify credible information.Consequently, an interest group's ability to influence a justice depends on the group's ideology, the justice's ideology, and the nature of the ideological signal sent by the group. Justices are particularly inclined to trust interest groups that share their ideological preferences and interest groups advocating outcomes contrary to their traditional ideological preferences. Amicus briefs should be especially likely to influence justices when both conditions are present; i.e., a justice and brief filer share ideological preferences and the brief filer sends an unexpected ideological signal. As a result, influential legal advocacy only partially depends on an interest group's inherent features (i.e., its ideology); amicus influence also depends on a specific litigation strategy (sending unexpected signals) and the nature of the signal receivers (the justice's ideology).The U.S. Supreme Court offers an ideal venue to test our signaling theory of interest group influence for several reasons. First, the highly formalized and routinized process of amicus filing renders lobbying activities easy to observe and measure. Second, brief filers must address all nine justices on the Court. This rule alleviates concerns about endogeneity and strategic targeting. Finally, the unique institutional environment of the Court minimizes the possibility that alternative elements drive the effectiveness of lobbying; life tenure eliminates electoral aspirations, which may be the driving force behind influence in other domains (Mayhew 1974).Consistent with signaling theory, we find that an interest group's influence on a particular justice depends on the ideological proximity between the interest group and the justice: liberal (conservative) groups tend to have greater influence on liberal (conservative) justices. …

British colonial penal codes contained prohibitions on consensual same-sex intercourse. These laws are increasingly recognized as constraints on the human rights and freedoms of lesbian, gay, bisexual, and transgender (LGBT) persons, contributing to an environment of insecurity and having perverse public health consequences. LGBT transnational advocacy networks in the Commonwealth have used litigation as one strategy to initiate a process of law reform. However, London-based NGOs encounter resistance, most notably by opponents of LGBT rights who are increasingly organized in their own networks, often funded by the American evangelical movement and other religious interests. Most grassroots LGBT organizations have been open to litigation as a possible tool for change. Undoubtedly, some activists have called into question this litigation as less of a priority than other LGBT rights issues, and certainly a litigation strategy may not always be practical. Nonetheless, “sharing” of jurisprudence on anti-sodomy laws among courts in the Commonwealth has helped to generate momentum toward legal protections for LGBT persons, as the successful recent decisions in Belize and India illustrate.

This essay is a response to commentary by Amnon Reichman and Mark Graber on The Taming of Free Speech for a symposium in the Jerusalem Review of Legal Studies. It addresses their observations that the interwar civil liberties campaign was shaped by events outside the circles of lawyers and activists I explore in the book, and it takes up their invitations to link the history of free speech more explicitly to developments in the wider field of civil liberties advocacy. It pursues their questions by reference to two historical developments that were omitted, for reasons of space and thematic coherence, from my final manuscript: the Sacco and Vanzetti affair, and the ACLU’s debate over its defense of Nazi speech. Both stories link the ACLU’s First Amendment strategy to developments abroad. Both also highlight the very real alternatives to the modern First Amendment that advocates proposed and defended. These controversies and others cast doubt on an overly deterministic account of the ascendance in the United States of the modern First Amendment, if not the survival of judicial review. By extension, they also illuminate connections between the ACLU’s litigation strategy and the recent weaponization of the First Amendment, as well as the usefulness of discarded alternatives in our own historical moment.

In 2018, thirty one years after the equality rights guarantee in the Canadian Charter of Rights and Freedoms took effect, women won their first Supreme Court of Canada appeal based on sex discrimination under section 15 of the Charter. Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la sante des services sociaux struck down provisions of Quebec’s Pay Equity Act that denied women remedies for sex discrimination in pay that was identified through pay equity audits. Since 1987, the SCC has recognized that systemic discrimination infuses the systems, institutions and relationships of power through which our society is organized. Yet, only rarely do truly systemic cases of discrimination come before the Court and when they do the Court has struggled to apply an appropriately systemic analysis. Alliance marks a meaningful breakthrough. This paper examines how Alliance and its companion case, Centrale des syndicats du Quebec v Quebec (Attorney General), represent a strong step forward in protecting against systemic discrimination. It analyzes jurisprudential advances on substantive equality, the role of section 15(2) of the Charter, and bringing a gender lens to the section 1 analysis. Examining the dissenting reasons, the paper also analyzes how the two cases simultaneously highlight the unresolved fractures at the foundation of equality rights jurisprudence that threaten its stability going forward. Finally it reviews a federal legislative initiative and a provincial litigation strategy – both on pay equity – that followed in the immediate aftermath of Alliance and CSQ to highlight the fragility of section 15’s protection in the face of political resistance to substantive equality. It asks whether, in a period of intensifying political polarization, governments have stopped engaging in the “Charter dialogue” when it comes to equality rights.

With the South African Constitution recognising customary law as part of South Africa's legal system, debates arose as to the application of the equality principle within custom, as many customary practices were seen as discriminatory. The Recognition of Customary Marriages Act 120 of 1998 was the first piece of legislation that was enacted to address gender inequality within customary law, specifically customary marriages. Future litigation on the topic was deemed to be straightforward, entailing the mere interpretation and application of applicable provisions. However, what has emerged from litigating on the customary law of marriage is how litigators, and especially the participating amicus curiae, diverge on the litigation strategy to use. The article explores the relevance and importance of amicus curiae participation within a constitutional framework and establishes whether such participation has contributed to ensuring that women living under customary law's claims to culture and equality are understood in the right context.

The search for mandatory international human rights law accountability for transnational corporations has long been one of the most challenging struggles facing human rights advocates and the victims of powerful rights-violating corporate actors alike. Reflecting on the extent to which the US case of Kiobel makes a difference in the light of the ‘closing of the door’ on a much-favoured activist litigation strategy, the authors argue that the neo-liberal structural order within which corporate accountability is sought means that all strategies, no matter how promising, are potentially undermined by corporate and/or ideological capture. The challenge of ending corporate impunity for gross violations of human rights demands the imposition of mandatory forms of direct corporate human rights responsibility, but the nature of the neo-liberal structural context should be understood to mandate continuous critical reflexivity, even if and when mandatory corporate human rights law accountability is established.

In the immediate aftermath of any data security incident, the attention of a company's management will inevitably swing quickly towards trying to seek appropriate legal redress and compensation for the damages an entity has suffered and the costs it has incurred in responding to that security incident. Invariably, such an incident will have had a major impact on the company, both in terms of the required engagement of internal and external stakeholders in the business and this will have come at a cost. Indeed, it would only be natural to want to recover some of these losses. In the immediate aftermath of any data security incident, the attention of a company's management will inevitably swing quickly towards trying to seek appropriate legal redress and compensation. It's natural to want to recover some of your losses, but such a response can frequently descend into a frustrating experience. However, with some very careful planning prior to any data security incident, a well-prepared company can incorporate a potential litigation strategy into its data security incident response plan, explains Mark Deem of Cooley (UK) LLP.

This viewpoint provides a brief overview of the procedures for initiating post-grant proceedings before the United States Patent Trial and Appeal Board, including a discussion of why companies are now commonly electing to use those proceedings, both as part of an overall litigation strategy and outside of the litigation context.

New York City has become the first jurisdiction in the United States to create a right to appointed counsel for poor people facing eviction. This Article draws on NYC’s housing defense statute to highlight three ways in which the creation of a civil right to counsel has the potential to build on and expand beyond the Gideon v. Wainwright model. The right to appointment of criminal defense counsel, as recognized in Gideon, was part of the Supreme Court’s indirect response to the Civil Rights Movement. In contrast, the NYC legislature openly promotes substantive outcomes, explicitly targeting eviction and its secondary effects. Additionally, the legislature’s focus on housing recognizes concerns that disproportionately impact Black women; this echoes the racial equality goal underlying Gideon and promotes gender equality. Finally, while the criminal defense model defends individuals against only state power, NYC’s right to housing defense counsel includes tenants of private landlords and thereby checks private power. All three of these features are worth attention from legislatures considering expansion of the right to civil counsel. The Article also identifies one important way in which the new model of appointment of housing counsel is like the criminal model for appointment: NYC’s legislation addresses appointment of defense lawyers, as opposed to lawyers for plaintiffs, potential plaintiffs, or people engaged in non-litigation matters. This Article argues that the focus on defense lawyering limits the impact of appointment of counsel. Defense lawyering suffers from systemic limitations that influence litigation strategy and the potential to collaborate with social movements. With respect to the substantive goal of housing preservation, problems like discrimination, harassment, and dangerous conditions also pose significant threats and could be more robustly addressed through affirmative suits. In spite of recognizing the limits of defense lawyering, this Article concludes that the availability of counterclaims in civil litigation makes civil defense more flexible than criminal defense. As a result, civil defense might be able to do more than criminal defense to challenge the status quo and advance substantive improvements for poor litigants.

This paper explores the shareholders’ meeting’s corporate governance role. We argue that the functions performed by the shareholders’ meeting are highly dependent on companies’ ownership structure, and we focus on the case of jurisdictions, like those in Continental Europe, with a majority of companies with concentrated ownership structures. In theory, the shareholders’ meeting is the time and place where shareholders’ property rights are protected and where shareholders aim, through, e.g., voting and litigation rights, to protect their investments in the firm. Consequently, attention should be drawn to the development of efficient tools to accomplish this objective. In this respect, the main corporate governance challenge is to combat expropriation and tunnelling by controlling shareholders. We attempt to contribute to the current debate on the shareholders’ meeting’s governance role by providing some basic regulatory guidelines that may inspire the legislative proposals that are now being drafted in Spain as well as in other parts of Continental Europe. On the one hand, we explore possible ways to empower (minority) shareholders through voting at the shareholders’ meeting. On the other hand, we conduct an empirical study of rulings applying the section of the Spanish Public Companies Act governing challenges to shareholder resolutions. The data provide evidence that this litigation mechanism, as is often claimed, faces both under and over-enforcement problems and is therefore in need of reform. We offer a tentative roadmap for improvement, based on the idea of incentivising value-increasing litigation without favouring the development of opportunistic suits. We also highlight the importance of disclosure and information rights and their impact on the litigation strategy.

UNDER the so-called "American Rule," parties in litigation are responsible for their own costs, with limited statutory exceptions. (1) Given this general rule, one losing party must have been stunned to recently receive a bill from the prevailing party for the exorbitant amount of $4.6 million for the cost of creating a litigation database. (2) Despite the losing party's protests, the court granted the prevailing party this $4.6 million in electronic discovery ("e-discovery") costs, finding that the expense was reasonable and saved time for the prevailing party's counsel. (3) While $4.6 million in discovery costs is particularly high, changes in technology and the development of the digital era have forced litigants to devote increasing resources to e-discovery while preparing for trial. (4) Approximately 247 billion emails are sent daily worldwide, and in 2009, more digital data was created than in all prior years combined. (5) Because law firms are often ill-equipped to produce large quantities of electronic information themselves, third-party e-discovery vendors are often hired to compile and catalog electronic data for discovery at substantial expense. (6) These vendors perform discovery tasks that did not exist in the paper era, such as scrubbing metadata from fries and creating keyword searchable databases of documents and files. (7) Traditionally, each party bears the cost of producing documents requested by the other side during discovery. (8) However, in the federal courts the prevailing party is entitled to tax certain costs to the losing party, including "fees for exemplification and the costs of making copies of any materials" ("[section] 1920"). (9) While this language was developed during the paper era, courts today are challenged to apply the statutory language to the modern technology of e-discovery techniques. (10) One such issue--the taxation of e-discovery costs--contentious. has become particularly. (11) Although United States discovery cost allocation is premised on reciprocity, production--including e-discovery production--is typically asymmetrical, causing one party to bear a far larger burden and cost of production. (12) As a litigation strategy, producing parties therefore take into account e-discovery production costs when deciding whether to litigate or settle a claim and when making discovery requests of the opposing party. (13) Because the Third Circuit is the only appellate court to address the issue of whether e-discovery costs are taxable, the district courts are split and have used a variety of analytical approaches in addressing the issue. (14) Some district courts have held that scanning is the electronic equivalent of copying, and then compared e-discovery with scanning to conclude that e-discovery costs are taxable. (15) Other courts, however, maintain that e-discovery does not merely replicate documents, like the taxable cost of copying, but rather creates entirely new documents, and is therefore not subject to taxation. (16) Because there is no consensus regarding the taxation of e-discovery costs and no real guidance from most federal appellate courts, the subject is gaining attention among practitioners and is in need of clarification. (17) In May 2011, in Race Tires America, Inc. v. Hoosier Racing Tire Corp., (18) the Western District of Pennsylvania issued the first opinion from the Third Circuit regarding this issue and taxed the losing party $367,359.36 in e-discovery costs. (19) As one of the most recent cases analyzing the taxation of e-discovery costs, Race Tires is notable for its broad interpretation of the statutory language and of case law from other districts. (20) This article argues that the Western District of Pennsylvania erred in allowing the taxation of e-discovery costs in Race Tires. E-discovery costs should not be taxable under Section 1920 because e-discovery requires intellectual effort to create new documents rather than merely "copying" existing documents and Section 1920 should be narrowly interpreted to that effect. …

INTRODUCTION “Hot damn!” These were the words self-described “flaming feminist” Sharron Frontiero joyously uttered when she learned that the U.S. Supreme Court's decision in her landmark 1973 case, Frontiero v. Richardson , would allow female military personnel to receive the same dependency benefits for their husbands as their male counterparts were already getting for their wives. Frontiero was a significant victory for the feminist movement, though not an uncomplicated one. The number of laws on the books in the early 1970s reflecting and reinforcing traditional gender roles was dizzying, and courts – including the U.S. Supreme Court – routinely upheld them. Frontiero was only the second case in which the Court invoked equal protection principles to hold unconstitutional a law that discriminated against women. It was also the first case Ruth Bader Ginsburg argued before the Court, helping solidify her role as “the leading Supreme Court litigator for gender equality” in the 1970s. The original decision in Frontiero marks the closest the Court has come to recognizing sex as a suspect class – Ginsburg's ultimate goal in a creative and sometimes controversial litigation strategy. But because Justice Brennan's opinion establishing strict scrutiny review for sex-based classifications garnered only a plurality of the Court, Frontiero left behind a messy legacy. In her feminist revision, Professor Dara Purvis, writing as Justice Purvis, gives Ginsburg the strict scrutiny majority for which she strategized so long and hard. Purvis's opinion is grounded in a social constructionist vision of feminism that views all gender stereotypes – including those found in “policies that seemingly honor women's contributions” – as harmful. What is unclear is whether Purvis's feminist judgment, had it been the actual majority opinion, could have done more to mitigate the potential dangers of strict scrutiny seen in recent years. GINSBURG's TEMPERATURE-RISING STRUGGLE FOR STRICT SCRUTINY In reflecting on her time as a gender equality litigator in the 1970s, Justice Ginsburg noted that “[o]ur starting place was not the same as that of advocates” fighting race discrimination because policies treating the sexes differently were often regarded “as operating benignly in women's favor.” Lawmakers and judges were “overwhelmingly white, well-heeled, and male,” and “generally considered themselves good husband[s] and fathers.

Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, Proposition 66, enacted by the voters on November 8, 2016. The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity. While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel’s conduct.Trial counsel’s new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act. Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of habeas corpus. The duty to object, the duty to engage in strategies to protect the client and the duty to counsel the client must be commenced in the trial court by trial counsel as soon as there is a judgment of death. These duties will also extend to cases which may be transferred to the Superior Court by the California Supreme Court. In addition, immediately upon appointment of habeas counsel and throughout the entire course of the habeas proceedings, counsel will have a more urgent duty than she did pre-Act to be available and responsive to assist habeas counsel.Objections must be made to the Act on statutory grounds as well as both California and United States Constitutional grounds. Some of the objections will be systemic and others will be case specific. There are reasons for the trial court, or, eventually, the higher courts, to find the Act inoperable, unconstitutional or otherwise to stay or delay the process. The Act is inoperable because it is not self-executing and because it is unfunded. The Act is unconstitutional because it violates the right to habeas corpus, interferes with the jurisdiction of the courts generally and specifically regarding capital cases, violates the separation of powers and the single subject rule and, if applied retroactively, violates the ex post facto clause. The Act also contributes to the overall unconstitutionality of the flawed capital punishment system in California.Under the Act, trial counsel must also take specific action regarding the “offer” of counsel by the trial judge and the “orders” made pursuant to the “offer.” Strategically, delay in implementation of the “offer” and the orders pursuant thereto may be required to assure appointment of qualified counsel, to avoid the premature commencement of the habeas filing limitation and to allow trial counsel to prepare the files, materials and record necessary for habeas counsel to commence work. Trial counsel will have a duty to advise the client regarding the client’s rights following the “offer” which will be critical in light of the trial judge’s apparent power to make a finding that the client has waived habeas counsel, potentially forever.Finally, trial counsel will have to make critical decisions and will have an important role regarding any potential claims of actual innocence or ineligibility of the client for execution. For instance, trial counsel must decide with the client and habeas counsel what information will or will not be disclosed and what litigation strategy will be employed to resist waiver of privileges that purport to be compelled under the Act. Finally, if there are grounds for factual innocence or ineligibility for the sentence of death, trial counsel must work with habeas counsel in presenting them early enough to obtain additional time to file the initial petition, if appropriate.

The processes that led to legal recognition of same-sex unions in Brazil and in the United States followed clearly different paths. Instead of pursuing legalization of same-sex marriage as a primary goal of their political agenda like their American counterparts, Brazilian gay and lesbian couples first sought access to the institutions that regulate domestic cohabitation. The early jurisprudential characterization of the family as an institution independent from marriage encouraged them to center litigation on the possibility of classifying same-sex couples as family entities. Gay and lesbian couples claimed in a series of lawsuits that they build a form of union that provides them with the same benefits that heterosexual individuals obtain from their relationships, a reason why the Brazilian legal system should not deny them equal legal treatment. Many courts acknowledged the validity of their claims in several decisions that gradually extended spousal rights to same-sex couples, a process that prepared the ground for the recent Supreme Court decision that legalized same-sex unions in the country. This article explains the development of the Brazilian same-sex union litigation and adjudication as a story about the convergence of two important jurisprudential developments: the long national tradition of giving legal protection to domestic cohabitants, and the emergence of a strand of decisions that understands equality as a constitutional principle that aims to eradicate structural forms of inequalities. By adopting an incremental approach to gay marriage litigation, Brazilian same-sex couples have achieved effective legal protection. The Brazilian case serves as an interesting point of comparison for same-sex marriage advocates elsewhere in the world, since this gradual approach tends to be dismissed as a litigation strategy that could deliver equal legal treatment.

This research traces the history of Tracy Neal v. Michigan Department of Corrections, a class action lawsuit against the Michigan Department of Corrections that alleged the sexual abuse of women prisoners spanning more than two decades. The litigation resulted in combined jury verdicts of more than $30 million for the plaintiffs and a $100 million settlement that included extensive injunctive relief. This article examines the abuses and conditions suffered by female inmates in Michigan prisons, the court decisions, jury trials, and settlement. Drawing on interviews from several lead attorneys for the plaintiffs, the article provides an examination of the circumstances, discusses litigation strategy, and highlights lessons from Neal that could be relevant to civil rights scholars and advocates. The article concludes with a discussion of the impact and future implications of this case.

This Article examines the balance between advancing one's arguments that a patent is invalid for lack of enablement and also arguing that a patent is invalid under 35 U.S.C. § 103 as being obvious over the prior art. This is significant with regards to arguments made by an expert in his or her expert report or at trial. A clear litigation strategy is thus recommended prior to reaching the expert report stage in a patent litigation.

The Southern Poverty Law Center (SPLC) has employed a litigation strategy to dismantle White supremacist organizations and reduce racist violence. Like all social control strategies, lawsuits brought against these organizations can create unintended consequences that undermine intended goals. This article explores the assumptions underlying the litigation strategy and presents several arguments that question the utility of this approach. Utilizing theory and research from a variety of academic disciplines, both perceptual and organizational consequences of litigation are addressed, with an emphasis on potential violent outcomes. In particular, the article explores how civil lawsuits against White supremacists might influence organizational form and structure, and the effect on leadership in the movement is examined. The impact of litigation on feelings of injustice and the strength of collective identity is also investigated. In addition, potential impediments posed to the lawsuit strategy by the Internet and modern technology are explored.

This article analyses Jane Doe v. Islamic Salvation Front et al., an Alien Tort Claims Act (ATCA) case brought in the United States by the late Rhonda Copelon, a leading feminist international lawyer. Bennoune explores the experiences of the Jane Doe plaintiffs, exposing the limited legal avenues that were available to them at the time. She finds that Copelon's creative ATCA litigation strategy embodied a symbolic, feminist act in the paradoxical quest for justice, armed with the knowledge that it would likely become a losing battle. The article ultimately shows that the ACTA litigation, even if unsuccessful in the end, recognised that non-state actors can harm human rights, and provided a powerful avenue for expressing plaintiffs' grievances when no other court would hear them.

It has been increasingly recognised in recent years that domestic violence constitutes a human rights issue. This paper seeks to shed light on the question of how human rights law may be used in the area of domestic violence through the medium of a litigation strategy. The method used is a comparative assessment of the approaches taken towards gender issues by the Constitutional Courts in three states that have famously dynamic judiciaries – India, South Africa and Canada. A number of the obstacles to the effectiveness of human rights law are also examined.

According to the state action doctrine, the Constitution restricts the activities of governmental but not private entities. Despite this rule's apparent simplicity, the Supreme Court has been clearly uncomfortable with precedents like Shelley v. Kraemer (1948) and has varied considerably in its receptiveness to state action claims from 1940 to 1990. The attitudinal model provides barely a beginning in accounting for both Shelley and changes in state action limitations. While liberal justices did initially relax state action requirements and conservative justices subsequently tightened them, that explanation ignores changes in the NAACP's litigation strategy, the Court's creation of doctrinal alternatives, and powerful civil rights legislation that together produced a sharp decline in state action claims involving race after 1970. These nonattitudinal “regime politics” factors enable a more complete and nuanced understanding of the state action field and help us to see the Court as collaborative rather than independent, dependent, or countermajoritarian.

Paralleling the institutionalization of human rights in European Community (EC) law is a growing body of literature on the use of strategic litigation by policy actors to expand or enforce those rights. Until recently however, relatively little scholarly attention has been paid to the full range of factors which influence the use of strategic litigation by organizational actors. This paper assesses existing explanations of strategy choice and finds that the emphasis on political and legal opportunity approaches and resource-mobilization explanations has led to a neglect of other, potentially important, variables. I aim to remedy this gap in the literature by suggesting that the identity politics and framing processes of a social movement may play a significant role in influencing the take-up of a litigation strategy. Case studies of the disability movement and the lesbian and gay movement in the United Kingdom illustrate how these variables can shape strategy choice.

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is "pretextual." This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site for an assembly, the government may need to rely on a private party to identify, as well as develop, a particular site. However, when the government itself possesses information regarding the site, pre-condemnation private involvement, as well as post-condemnation involvement by a preferred developer, is generally unnecessary. Such involvement increases the likelihood of a pretextual transfer without any corresponding public benefit. The Article concludes that a burden-shifting framework, analogous to Title VII's test for identifying pretext, can be adopted in the takings context. The new framework is then applied to several situations in which allegations of pretext are likely to arise.

In June 2007, the Supreme Court of Canada expressly overruled 20 years of jurisprudence that interpreted the freedom of association as excluding collective bargaining. This about-face by the Supreme Court was unexpected. What gave rise to this remarkable decision and what does it portend for the role of the courts in labour relations in Canada and beyond? The recent successes before courts have led some observers to suggest that it may now be a propitious time for a coordinated and proactive litigation strategy to vindicate labour's collective rights. This article offers some preliminary answers to these broader questions and issues by focussing on the Supreme Court's decision in the Health Services and Support case. © Industrial Law Society; all rights reserved.

Desde el 2005, varias organizaciones colombianas pertenecientes al movimiento social LGBT han implementando una actividad de litigio constitucional estratégico con el objetivo de obtener la igualdad legal entre las parejas homosexuales y heterosexuales. El objetivo de este artículo es mostrar cómo la jurisprudencia que la Corte Constitucional ha creado para responder a esa demanda social, ha generado efectos contradictorios en términos democráticos. No cabe duda de que ha enriquecido la participación ciudadana en el debate sobre los derechos de las parejas del mismo sexo gracias al fortalecimiento de un contra movimiento religioso dispuesto a hacer presión sobre las autoridades con base en un lenguaje de derechos fundamentales. Sin embargo, también ha generado un déficit democrático debido a que la Procuraduría General de la Nación, una de las autoridades más importantes del Estado colombiano, ha sido capturada por católicos intransigentes e integristas. Debido a esta situación, los recursos de esta poderosa institución han sido utilizados para evitar el reconocimiento y la protección de los derechos de las personas homosexuales a contraer matrimonio y a adoptar menores de edad, a pesar de que las principales funciones de esta autoridad pública son defender los derechos humanos de los ciudadanos y castigar las faltas disciplinarias cometidas por los servidores públicos.

Women’s Link Worldwide developed a test to determine when an environment is conducive to social change through strategic litigation. We first present our understanding of strategic litigation, and then discuss four conditions for successful and sustainable change using strategic litigation: (1) an existing rights framework; (2) an independent and knowledgeable judiciary; (3) civil society organizations with the capacity to frame social problems as rights violations and to litigate; and (4) a network able to support and leverage the opportunities presented by litigation. Next, we present examples from our work in Colombia that show how analysis of these conditions informed our litigation strategy when confronting a powerful public official who opposes reproductive rights. Two litigation strategies were adopted. The first case was not successful in the courts, but allowed us to introduce our message and build support amongst civil society. The second case built on this momentum and resulted in a victory. Strategic litigation is a powerful tool to advance rights as well as hold governments accountable and ensure compliance with human rights obligations. The strategies developed can be adapted for use in other contexts. We hope they inspire others to protect and promote reproductive rights through strategic litigation when women cannot fully enjoy their rights.

There are very few international law standards which have such a long standing as the Most-Favoured-Nation Clause (MFN). This fundamental norm of international treaty law was left out from the Vienna Convention on the Law of Treaties, but was developed as a separate topic of the UN International Law Commission and extensively used in the area of economic and trade liberalization. MFN has been the cornerstone of the GATT/WTO and consistently present in bilateral investment treaties (BITs). Given that there are around 2,800 BITs it is certain that MFN has been markedly present in international treaty law. On its face MFN clause provides a very powerful protection by equalizing the beneficiary of the MFN clause with all other persons (entities, States) with respect to rights and benefits. As the practice has shown its relevance is both substantive and procedural. However, this paper will not dwell much on procedural and substantive contents of the MFN. It will focus on the way the MFN is being employed as a part of litigation strategy in international proceedings. An overview of cases tends to show that MFN clause is used rather as a cause of action than as a tool for ensuring substantive protection before the dispute arises. In other words, there are few, if any, examples, which show that applicants in international investment arbitration do not invoke MFN clause while trying to ensure the most favored nation treatment during the performance of their investment, but it is rather a belated MFN argument raised by the investor before the investment tribunal for the first time. In other words, investors rarely use the clause to have what would seem to be its primary purpose: substantive protection. If this argument is raised for the first time in the proceeding, this means that MFN clause is perceived as a cause of action rather than as a genuine substantive guarantee. This approach of applicants and arbitral tribunals is criticized by the author from both deontological and normative perspective. Very simple testing of certain MFN awards can demonstrate their fallacy: retroactive construct of MFN clause makes the duty impossible to perform. Given a very genuine concept of the MFN and its effect, it is absurd to assume its automatic application. The main argument of the author is that the way the MFN is used as a cause of action demonstrates that it was never the intention of the applicants to use this clause as a ground for substantive guarantee but only for litigation strategy.

On 7 February 2006, a chamber of the European Court of Human Rights gave judgment in the much awaited ‘Ostrava case’, which challenged the placing of disproportionate numbers of Romani children in ‘special schools’ for the learning impaired in the Czech Republic. This practice, widespread across Central and Eastern Europe, amounts in effect to racial segregation and denies Romani children access to a standard of education comparable to their non-Romani peers. The Ostrava case, taking eight months to assemble and seven years to reach judgment day in Strasbourg, represented the centre-piece of the litigation strategy of the Romani rights movement. The decision of the Strasbourg Court to ignore the evidence of indirect racial discrimination by a 6-1 majority represents not only a setback for those working for the improvement of the situation of the Roma – widely acknowledged as the most disadvantaged, discriminated and marginalised group in Europe – but also for the crystallisation of non-discrimination norms in Europe.

This article discusses feminist engagement in the judicial process in the light of the changing constitutional landscape in the U.K. It considers feminist activism in the courts and the potential that third party interventions provide for feminists to influence judicial decision making under the Human Rights Act 1998. The impact of the intervention by women’s groups in the case of R. v. A. (No. 2) is discussed. Despite the disappointing decision, it is argued that the intervention was a worthwhile endeavour. Third party interventions are important if feminists are to hold on to the gains they have made through the legislative process. Interventions also offer an opportunity to build a litigation strategy that will help shape the development of the case law under the Human Rights Act 1998.

The landmark 1954 decisionBrown v. Board of Educationhas shaped trial lawyers' approaches to litigating civil rights claims and law professors' approaches to teaching the law's powers and limitations. The court-ordered desegregation of the nation's schools, moreover, inspired subsequent lawsuits by African Americans aimed variously at ending racial distinctions in housing, employment, and voting rights. Litigation to enforce theBrowndecision and similar mandates brought slow but steady progress and inspired members of various other minorities to appropriate the rhetoric, organizing methods, and legal strategy of the African American civil rights struggle.

In 1916, Charles Anderson Boston, one of the members of the first national Legal Redress Committee of the National Association for the Advancement of Colored People, spoke at the organization's board of directors meeting to endorse the use of new litigation strategies in the fight against racial segregation. The “proper presentation of the legal fight against segregation,” Boston urged, should focus on gathering “facts, not law” to demonstrate to the courts the law's “actual operation.”; Boston's emphasis on using facts to demonstrate the law's operation accorded with the NAACP's litigation strategy, which relied not only on gathering and presenting such facts but also oncreatingfacts by carefully staging scenarios that would present the right test cases to the courts for adjudication.

This article suggests some pause for reflection amongst intellectual property lawyers, and for serious consideration of the words of an internationally-renowned IP law expert: "Possessing a right does not mean that it is a good idea to enforce it always, and to the hilt. Discretion may be nine parts of possession". It provides some prominent, recent examples of trademark bullying or overly-aggressive enforcement in the IP law context. These examples are mainly from other jurisdictions but they are directly relevant to some of the IP law challenges present in South Africa at the moment. The article further examines why lawyers and rights' holders engage in trademark bullying (why it's done), and start to deal briefly with some of the legal implications. A future article is to examine the legal aspects of trademark bullying in much more detail and considers its legitimacy within the context of IP law, more generally, and some other areas of law, more specifically.Keywords: Trademarks; Trademark infringement; Intellectual property; IP rights; Overly-aggressive enforcement; Rights holder over-reach; Litigation strategy; Cease-and-desist letters; Strike suits; 'Trademark extortion'; 'Duty to police'; Streisand effect; Ambush marketing.

In order to make this presentation precise and systematic I propose to divide it in the following sections. Section 1 is an introduction and deals in fine with the dynamics of legal aid. Section 2 explores the inextricably linked relation ship between legal education and legal aid. Section 3 then goes on to present a brief narrative of the litigation free village scheme and critically examined its contribution in providing new vision to the blend of legal education & legal aid. Section 4 & final section is an epitome. During the course of this presentation a modest attempt has been made to problematize the stereotypical conception of Legal aid limited merely to providing the lawyers to the litigants in the courts. This singular focus on the litigation fails to take note of both pretrial counseling & post litigation strategy. This paper would mainly focus on the former.

This paper is an economic analysis of cause lawyering, in which lawyers seek social change through the courts. The lawyer’s litigation strategy consists of deciding how many steps in the law to ask the court to move at a single moment. We find that more intense advocates prefer to ask for a series of small steps to move the law. We also investigate how the Supreme Court’s doctrine responds to advocacy in lower courts. We find that when facing intense advocates, a Supreme Court is more likely to issue constraining doctrine. We link the findings from the model to the National Association for the Advancement of Colored People’s litigation strategy for eradicating the doctrine of separate but equal.

In Kader Asmal's case, his political activities focused on the struggle against apartheid in South Africa and the protection of civil liberties in Ireland. In 1963, he founded the Irish Anti-Apartheid Movement (IAAM) and succeeded in raising the consciousness of the Irish people about the evils of State racism in his home country. In June 1976, Kader, together with Mary Robinson and others, established the Irish Council for Civil Liberties (ICCL) to campaign for the protection of human rights in Ireland. This chapter evaluates the efficacy of litigation strategy in Ireland based on the experience of two groups, children and Travellers, a distinct community in Irish society that suffers from poverty and discrimination. This experience highlights the need to be cautious about the use of this strategy and to ensure that it is complemented by political action to influence the inevitable political response to any favourable judicial decision. Keywords: Irish Anti-Apartheid Movement (IAAM); Irish Council for Civil Liberties (ICCL); Kader Asmal; litigation strategy; Mary Robinson; State racism

*The right to private civic engagement – the right to participate in politics confidentially as an individual or in association with others – is under assault as “dark money.” The attack is really an effort to suppress opposing ideologies by exposing speakers and their associates to retaliation. Unfortunately, current Supreme Court precedent enables and emboldens such suppression by sanctioning regulations that do little to prevent corruption or educate voters even as they chill political involvement. Although mandatory disclosure and disclaimer requirements are still subject to exceptions for those who can claim a reasonable probability of retaliation, in today’s polarized political environment it is increasingly apparent this exception should be the rule. There is hope for a return to our nation’s tradition of respect for private speech and association. A focused litigation strategy can help usher that tradition into wider acceptance by the judiciary. States can assist in protecting private civic engagement by enacting a Free Speech Privacy Act, which would codify the right to be free from disclosure and disclaimer mandates that impose a reasonable probability of retaliation. States also can enact a Publius Confidentiality Act, which would guarantee citizens who legitimately fear retaliation the right to secure a confidential identity for use in their political activities. These proposals are fully constitutional under current precedent and will help move the nation toward a renewed recognition of the fundamental importance of private civic engagement in our Republic. There is hope for a return to our nation’s tradition of respect for private speech and association.

The New Labor Procedure Act has generated many changes in the structure of the labor process itself: It has turned from being written and unfocused to become now an oral and concentrated one. As a consequence, there's only once chance for convincing the Judge.This article covers the strategy to be followed in this new process, from the strategy itself to the allegations, in order to generate certainty in the judge whom will solve the case. La Nueva Ley Procesal del Trabajo ha generado cambios muy amplios en la estructura delproceso mismo: Ha pasado de ser un proceso escrito y desconcentrado a convertirse en uno oral y concentrado. Como consecuencia de ello, existe una única oportunidad de convencer al Juez.El presente artículo abarca la estrategia que debe seguirse en este nuevo proceso, desde la formulación de la estrategia misma hasta los alegatos, a efectos de generar convicción en el juzgador que resolverá el caso.

The right of freedom of association, nowadays, is considered a fundamental right of workers. However, and though it has been internationallyrecognized in several Covenants of the International Labor Organization, it has been a tendency among Latin American governments to limit the exercise of this freedom.In the present article, the author criticizes what he considers to be an excessive regulation of the exercise of the right of freedom of association by workers, present in almost every country in the region. These limitations are manifested through constitutional or legal restrictions to the formation of labor unions, union unity regimes and difficulties for the constitution of labor unions. In that way, he calls for the guarantee of the right of freedom of association for workers in Latin America. El derecho a la libertad sindical es considerado, hoy en día, como un derecho fundamental del trabajador. Sin embargo, y a pesar de estar reconocido internacionalmente en diversos Convenios de la Organización Internacional del Trabajo, ha sido una tendencia de los gobiernos latinoamericanos la limitación del ejercicio de la libertad sindical.En el presente artículo, el autor hace una crítica a lo que él considera una excesiva regulación del ejercicio de la libertad sindical presente en casi todos los ordenamientos jurídicos de la región. Estas limitaciones se manifestarían a través de restricciones constitucionales o legales a la formación de sindicatos, regímenes de unicidad sindical y trabas a la constitución de los mismos. De ese modo, hace un necesario llamado a la garantía del derecho a la libertad sindical en Latinoamérica.

Numerous studies have shown that anchoring strongly effects juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led some to believe that “the more you ask for, the more you get.” Others believe that the damage demand must pass the “straight-face” test. But little scholarly literature exist to determine whether an outrageously high request really does undermine the plaintiff’s credibility, and whether this “credibility” effect outweighs the anchoring effect. Likewise, little scholarly attention considers whether a defendant can effectively respond to the plaintiff’s high anchor. One obvious strategy would be a “counter-anchor” – the defendant suggesting a much lower damages award. However, defense attorneys worry that juries may interpret such a strategy as an admission of liability. Thus, in fact, defendants often allow the plaintiff’s anchor to go unrebutted, but this strategy has also not been rigorously tested. To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to a shortened medical malpractice trial, manipulated with six different sets of damages arguments in factorial design. The plaintiff demanded either $250,000 or $5,000,000 non-economic damages. The defendant responded in one of three ways: (1) offering the counter-anchor that, if any damages are awarded, they should only be $50,000; (2) ignoring the plaintiff’s damage demand; or (3) attacking the plaintiff’s demand as outrageous and using this characterization to argue that the plaintiff’s entire case was not credible. Mock jurors were then asked to render a decision on both liability and damages. We then ran these individuals decisions through a computer simulation to create mock jury decisions. Our study confirmed that anchoring has a powerful effect on the amount of damages mock juries award. However, a large damages demand also had a small negative effect on liability determinations. When looking at the expected value of the case – the average award when both liability and damage award are considered – these “credibility effects” were overwhelmed by anchoring effects. Different defendant responses also resulted in different outcomes when plaintiff anchored low, but none of these defense strategies are an effective antidote to the plaintiffs’ high anchor. We discuss implications for litigation strategy and policy.

Through the examination of one of the most successful cases of a European Community (EC) law litigation strategy, this article develops a general framework for understanding when and how the EC legal system will be successfully used by domestic groups to challenge national policy. The authors show how the European legal system actually shifted the domestic balance of power in favor of equality actors, allowing a previously weak domestic group to influence the United Kingdom's gender equality policy at the height of Conservative Party rule. Expanding beyond the British case, the article develops a series of hypotheses about when the EC legal tool is likely to be used by groups to influence national policy, hypotheses that could account for cross-national variation in the impact of European Court of Justice jurisprudence on domestic policy in areas outside of equality policy.

(2000). Losing the Battle, Winning the War: Litigation Strategy and Pressure Group Organisation in the Era of Incorporation. King's Law Journal: Vol. 11, No. 1, pp. 90-104.