TransLitigate

Litigators feature in a crucial role as we confront the pressing global environmental governance challenges of the 21st Century. They possess an agency which is capable of driving the evolution and implementation of law across national boundaries and at the supranational level. This project proposes to develop a groundbreaking, explanatory model of transnational collaborations among strategic litigators which accounts for their modes of collaboration, how those collaborations affect their agency in controlling the issues in their respective fields, and how they negotiate complex ethical and professional challenges in their work. It proposes to develop this model through the combination of comparative doctrinal research and inductive qualitative socio-legal research across four case studies of strategic litigation: climate change, large-scale land transfers, pollution caused by extractives industries, and species conservation. It pursues the ground-breaking aim of explaining the multi-faceted and complex deliberations among transnational communities of litigators which give rise to and shape the landmark cases transforming environmental governance in diverse national contexts. With this contribution to the sociology of strategic litigators, the project will achieve a break-through in our understanding of how change can be initiated in legal systems to overcome perpetual obstacles and meet our global environmental challenges. It pursues a breakthrough in understanding how litigators drive states and their legal systems to act upon their ability to govern global environmental challenges, given the unlikeliness of it occurring through domestic and international lawmaking alone. In sum, the project aims to develop a groundbreaking model of an innovative type of agency and actor in global governance: the strategic litigator collaborating across borders. The progress made on the biodiversity litigation case study has delivered the first clear results beyond the state of the art, as the first paper (currently under peer review) establishes a strong case to be made for a transition to strategic approaches to biodiversity litigation. The outcomes of this case study will help shape a next generation of inquires into the evolution of nature conservation and restoration law, by outlining both how the sub-field itself can be articulated to prevent harmful actions higher up a causal chain, as well as how the norms from this sub-field can be read across other areas of law which are facilitating activities harmful to biodiversity. The findings also provide a strong basis for empirical research on how legal mobilization strategies are shifting ‘on the ground’ in environmental interest groups and environmental movements which to secure greater impact in their litigation actions. A second result beyond the state of the art is the positioning of climate litigation within a framework of political ecology, as done in Juan Auz’s 2024 article ‘The Political Ecology of Climate Remedies in Latin America and the Caribbean: Comparing Compliance between National and Inter-American Litigation’. This political ecology framework will be returned to in future papers and helps inform our future empirical research by positing political struggles and conflicts as a central concern to our categorization and analysis of litigation, including as a challenge confronting attorneys in the development of their cases.