Lisa Vanhala

Anti-discrimination policy actors and their use of litigation strategies: the influence of identity politics

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.

Fighting discrimination through litigation in the UK: the social model of disability and the EU anti‐discrimination directive

The enactment of British and European legislation establishing rights for disabled people is an important step in combating discrimination and social exclusion. However, rights remain empty promises if they are not enforced. Litigation and test case strategies have become an important way of enforcing rights. This article explores why organizations might turn to the courts to achieve their policy goals and finds that this phenomenon is best explained not by the creation of legal bases or an expanding legal opportunity structure but rather by the adoption of the social, civil‐rights model of disability by the disability movement. The social model, with its emphasis on individual rights, equality and reasonable accommodation laid the foundation for litigation strategies. Litigation is able to reduce exclusion through long‐term socialization of norms of equality and through the short‐ and medium‐term creation of incentives which encourage individuals to end discriminatory practices.

The shift to the rights model of disability in the EU and Canada

Approaches to disability policy have undergone a radical re-orientation across Europe and North America in the last twenty-five years. They have shifted away from a welfare-based model towards a rights model, which emphasizes the equality rights of persons with disabilities. This relatively rapid, cross-national paradigm shift, in the face of institutionalized mechanisms that one would expect to resist radical change, poses a puzzle. We argue, using the cases of Canada and the European Union, that the federal and supranational governments played a key role in encouraging the spread of the rights model of disability in their respective federal political systems and that this is crucial in explaining the timing of the shift. We find that reframing disability issues as a question of rights helped to expand the authority and the legitimacy of centralized governance.

Framing Climate Change Loss and Damage in UNFCCC Negotiations

How does an idea emerge and gain traction in the international arena when its underpinning principles are contested by powerful players? The adoption in 2013 of the Warsaw International Mechanism on Loss and Damage as part of the United Nations Framework Convention on Climate Change (UNFCCC) puzzled observers, because key state parties, such as the United States, had historically opposed the policy. This article examines the roles of frame contestation and ambiguity in accounting for the evolution and institutionalization of the “loss and damage” norm within the UNFCCC. The article applies frame analysis to the data from coverage of the negotiations and elite interviews. It reveals that two competing framings, one focused on liability and compensation and the other on risk and insurance, evolved into a single, overarching master frame. This more ambiguous framing allowed parties to attach different meanings to the policy that led to the resolution of differences among the parties and the embedding of the idea of loss and damage in international climate policy.

The Diffusion of Disability Rights in Europe

This article examines the spread of disability rights across European countries. Existing theoretical explanations of rights diffusion are unable to account for the pattern of adoption of disability equality norms across Europe over the last twenty years. The article argues top-down explanations need to be complemented by agent-centered approaches to convincingly account for the case of disability rights in Europe. Engagement with social movement theory that takes domestic activists and the meanings they attribute to rights seriously offers a better understanding of how and why we might see the rise of rights in one case and their rejection in another.

Mobilizing European law

ABSTRACT The literature on European legal mobilization asks why individuals, groups and companies go to court and explores the impact of litigation on policy, institutions and the balance of power among actors. Surveying the literature we find that legal mobilization efforts vary across policy areas and jurisdictions. This article introduces a three-level theoretical framework that organizes research on the causes of these variations: macro-level systemic factors that originate in Europe; meso-level factors that vary nationally; and micro-level factors that characterize the actors engaged in (or disengaged from) litigation. We argue that until we understand more about how and why different parties mobilize law, it is difficult to respond to normative questions about whether European legal mobilization is a positive or negative development for democracy and rights.

Legal Mobilization under Neo-corporatist Governance: Environmental NGOs before the Conseil d’Etat in France, 1975–2010

Existing theory suggests that under neo-corporatist governance, civil society groups are less likely to take the state to court. However, a comparative analysis of the use of legal strategies across a number of environmental nongovernmental organizations (ENGOs) in France presents a counterintuitive finding. Drawing on new data on more than 200 cases taken by these ENGOs, the analysis finds that the groups that are most incorporated in policy making are also the most active litigants against the Environment Ministry in the Conseil d’Etat. This article tests a number of theoretical explanations to account for this result. It finds that the neo-corporatization of the rules determining access to justice as well as the presence of certain agent-level characteristics helps to explain when and why groups mobilize the law.

Is Legal Mobilization for the Birds? Legal Opportunity Structures and Environmental Nongovernmental Organizations in the United Kingdom, France, Finland, and Italy:

What explains the likelihood that a nongovernmental organization (NGO) will turn to the courts to pursue their policy goals? This article explores the factors that influence the mobilization of law by environmental NGOs in four Western European countries. It finds that explanations focused on legal opportunity structures are unable to account for the patterns of within-country variation in legal mobilization behavior. The research also shows that bird protection NGOs as well as home-grown national environmental NGOs are generally more likely to turn to law than transnational environmental groups. Although resources and legal opportunities clearly matter to some extent, the author suggests—drawing on sociological institutionalist theory—that explanations of NGO legal mobilization should (a) incorporate an understanding of how groups frame and interpret the idea of “the law” and (b) explore the role of “strategy entrepreneurs” who promote the use of particular tactics within an organization.

The comparative politics of courts and climate change

Disappointment with international efforts to find legal solutions to climate change has led to the emergence of a new generation of climate policy. This includes the emergence of courts as new ‘battlefields in climate fights’. Cross-national comparative analysis of the United Kingdom, Canada and Australia supplements research that has found that litigation plays an important governance gap-filling role in jurisdictions without comprehensive national-level climate change policies. The inductive research design identifies patterns in climate change litigation. The three countries illustrate the varieties of climate policies, and thus serve as a useful entry point for thinking more generally about the interplay between climate politics and legal mobilisation. To improve theoretical understandings of the role of courts in climate change politics, the range of litigants and the variety of cases brought to courts under the umbrella of the term ‘climate change litigation’ are identified.

Process Tracing in the Study of Environmental Politics

This article surveys the use of process tracing as a method in research on global and comparative environmental politics. It reveals that scholars have been reluctant to explicitly embrace the method, even though a great deal of environmental politics research relies on process tracing and studies causal mechanisms. I argue that the growing number of critiques that the subfield is overly descriptive and insufficiently focused on explanation is one consequence of the reluctance to explicitly embrace process tracing. Drawing on recent debates on causal mechanisms within the philosophy of social science and a growing literature on how to trace processes, this article outlines best practices in the application of the method in the study of environmental politics. I consider some ways in which the use of process tracing in the study of environmental politics may be different from its use in other areas of comparative politics and international relations.