As societies grapple with mitigating or adapting to climate change, law plays a prominent role in the social relations that constitute a response. In this essay, we briefly review of the many different perspectives on law and climate change offered by the authors in this special issue of Law and Society Review. From transnational human rights activism to constitutional litigation to local practices and all around the globe, both the powerful and the marginalized draw on legal institutions and actors in multiple arenas and at multiple scales to address the consequences of climate change. Together, these articles show that law is not confined to courtrooms or judicial systems or regulations; rather, law offers both limitations and opportunities in the ongoing struggle over climate change.

The preliminary reference procedure is a crucial tool for EU law enforcement. Yet, its usage varies greatly across the Member States. This paper deals with a notable case in which EU justice has not been mobilized: Greece. Until 2023, Greek judges had not made any preliminary references in the migration and asylum fields, despite significant migrant flows. This study investigates why Greece, with its critical migration challenges, became a zero-reference case.

Drawing on empirical and doctrinal research, this paper tests two main hypotheses. The first hypothesis, derived from the “judicial empowerment thesis,” suggests that Greek judges may have been hesitant to refer cases due to political or institutional factors. The second hypothesis, based on scholarship highlighting the role of lawyers and civil society in promoting EU litigation, predicts that the absence of references reflects a lack of activist lawyers, skills, or resources.

The findings challenge common assumptions, revealing that Greek judges are not inherently reluctant to refer cases. Instead, obstacles to access to justice and civil society’s attitudes help understand the absence of references. Going beyond judges, this paper explores how perceptions among migrant supporters, their legal consciousness, and traditional modes of action contribute to the lack of pressure for preliminary references.

This research contributes to understanding the complexities surrounding judicial dialogue and enforcement of EU law. It offers insights into how the interplay of institutional, legal, and social factors shapes legal mobilization and strategic litigation.

This Article examines how private economic actors mobilize EU law to pursue broader legal, political, economic, or societal ends. It studies the strategic nature of corporate litigation before the Court of Justice of the EU in the context of the EU Emissions Trading System, a prime illustration of neglected strategic climate litigation. Corporate cases against the ETS have so far fallen under the radar of scholarship focused on EU strategic climate litigation. Such underrepresentation is linked to a double bias in scholarship, favoring high-profile climate cases that advance public interest causes and progressive agendas. Applying a normatively open definition of strategic litigation and actor-centered methodological approach, the Article brings to light features of corporate strategic litigation in EU law which otherwise go unseen. It offers empirical observations into boundary-testing behavior by private economic actors and the notion of a private generalizable interest, untangling strategic climate litigation by private economic actors as overlooked proponents in Court. The Article finally distinguishes a selection of legal strategies through which corporate actors mobilize EU law, such as instances of coordinated litigation; futile and seemingly routine challenges initiated before the Court to test judicial waters; and the use of litigation as a political advocacy tool.

Strategic litigation plays a crucial role in advancing human rights in the digital age, particularly in cases where data subjects, such as migrants and protection seekers, experience significant power imbalances. In this Article, we consider strategic litigation as part of broader legal mobilization efforts. Although some emerging studies have examined contestation against digital rights and migrant rights separately using legal mobilization frameworks, scholarship on legal mobilization concerning the use of automated systems on migrants and asylum seekers is scarce. This Article aims to address this gap by investigating the extent to which EU law empowers strategic litigants working at the intersection of technology and migration. Through an analysis of five specific cases of contestation and in-depth interviews, we explore how EU data protection law is leveraged to protect the digital rights of migrants and asylum seekers. This analysis takes a socio-legal perspective, analyzing the opportunities presented by EU data protection law and how civil society organizations (CSOs) utilize them in practice. Our findings reveal that the pre-litigation phase is particularly onerous for strategic litigants in this field, requiring a considerable investment of resources and time before even reaching the litigation stage. We illustrate this phase as akin to “climbing a wall,” characterized by numerous hurdles that CSOs face and the strategies they employ to overcome them.

Both European Union law and the European Convention on Human Rights offer an opportunity structure for a broad array of interests to pursue their objectives through strategic litigation. The spectrum of rights that litigants can claim is sufficiently broad that no consensus has emerged on the general consequences of such litigation. While much research has emphasized European law as a resource for civil society groups, EU law in particular has also been identified as a boon for businesses who challenge cornerstones of coordinated capitalism. This paper sets out to provide a better empirical basis for a normative evaluation of the consequences of strategic litigation in European law by asking who engages in it and who does not. It draws on data from a large-scale survey among interest groups in eight European countries. While results show significant differences in country-level litigation rates, the focus of this analysis is on the impact of group characteristics on the choice of litigation as a strategy. The findings confirm that litigation requires specific resources but highlight that groups with a prior interest in European affairs and those with antagonistic relations to national authorities are the most likely to turn to strategic litigation based in European law.

The present contribution seeks to provide an empirical overview of how the amended internal review mechanism established under the EU Aarhus Regulation is currently being deployed by civil society organizations to mobilize EU climate change law. This Article argues that the 2021 reform of the Aarhus Regulation has broadened the legal opportunity structure available to environmental organizations, which can now challenge a much broader set of EU administrative acts. However, this contribution holds that the internal review mechanism is being used strategically by environmental NGOs with the intention to contest - even before the EU judiciary - not only EU administrative acts, but also broader policy arrangements, representing the legal infrastructure of the EU ecological transition. In this regard, the Aarhus internal review mechanism can now be considered a real scientific dispute settlement forum, where NGOs and EU institutions can confront each other and disagree on the way scientific evidence is taken into account in the EU policymaking. Finally, the new specific features of the internal review mechanism are truly empowering only those organizations owning the necessary legal and technical expertise, allowing such NGOs to act as credible scientific interlocutors of the EU institutions on behalf of the wider public.

Our article offers an in-depth account of the role of the transnational practices of collaboration, storytelling, and learning in the diffusion of rights-based climate litigation (RBCL). Drawing on semi-structured interviews, participant observation, and quantitative data, we trace how the performance of these practices by lawyers, litigants, communities, scholars, and NGOs have fostered and sustained the transnational generation, exchange, and flow of resources, relationships, narratives, and knowledge underlying the field of RBCL. We argue that all three practices have fostered the diffusion of RBCL by influencing the local determinants of legal mobilization through enabling, discursive, and relational pathways. Finally, we show that these practices have had structural effects that have shaped the ideas and identities of the practitioners in the field of RBCL. Over time, the discursive and relational dimensions of practices have given rise to and have been strengthened by the formation of multiple communities of practice. The emergence of distinct communities provides the possibility for deeper forms of socialization and acculturation among their members, but they also make conflict and competition between different communities more likely. Overall, our article emphasizes the importance of understanding legal mobilization for climate justice as a set of practices that are shaped by the transnational social-legal context in which they are performed.

Bringing critical race theory and settler colonial theory to bear on legal mobilization scholarship, this article examines the ongoing campaign to strike down the 1978 Indian Child Welfare Act (ICWA). ICWA sought to end the forced removal of American Indian children from their tribes. If successful, the challenges to ICWA’s constitutionality stand to undermine tribal sovereignty writ large. Drawing on a content analysis of documents from 17 major court cases (2013–2023) and a unique dataset of public-facing documents from the leading ICWA challengers, I interrogate the argumentative architecture of this legal mobilization. I find that the campaign to strike down ICWA is structured around three ideological maneuvers: erasure, settler normativity, and reclassification. These maneuvers scaffold a fourth – colorblindness – and the claim that ICWA is an unconstitutional race-based statute. I show how ICWA adversaries use these ideological maneuvers to legitimate white possession of Indigenous children and delegitimize tribal sovereignty. While existing work tends to treat colorblind racism and settler colonialism as analytically distinct, these findings shed light on the linkages between the two. They also marshal empirical analysis to illustrate how the embeddedness of settler colonialism and racism in the law enables broad claims to and defense of whiteness as property.

This article serves as an introduction to the special issue on ‘Populism and Right-Wing Legal Mobilization in Europe’. We point to the dependence of populists in power on non-state actors: populist governments have ideological and political reasons to need the support of civil society’s right-wing representatives and have the financial and institutional means to strengthen those organizations. We then map right-wing legal mobilization in Europe based on the analyses in the special issue. By right-wing legal mobilization, we understand the organized efforts, resources, and strategies employed by individuals, groups, or organizations with conservative or right-leaning ideologies to embody their values in positive law and its interpretation. The text concludes with a dynamic normative framework to assess this type of mobilization. Drawing on recent contributions from comparative constitutional law, human rights, and socio-legal studies, we argue that the analysis and evaluation of right-wing legal mobilization could be based on a comprehensive analysis of three bundles of issues: (1) the relationship between mobilizing actors and the courts, as well as the local standard of judicial independence, (2) the relation of right-wing argumentation to systemic linkages and historical trajectories of human rights, (3) the redistributive effect (economic and symbolic) and the potential success of such mobilization on the legal capacities of other actors who may have opposing interests. From this perspective, the problematic part of right-wing legal mobilization in the context of populism is, therefore, not its ideological, conservative character but its influence on the rule of law to gain strategic advantage. In the process, the very idea of the rule of law and the related issue of civic agency may be compromised.

The toolbox for resisting illiberalism is quite diverse. It includes high-level diplomatic negotiations concerning sanctions to enforce democracy and citizens’ mobilisation for local causes. This article focuses on strategic litigation as legal mobilisation, relying on the language of rights and the rule of law and addressing courts as defenders of liberal democracy. Such mobilisation leads to litigation before national and European courts concerning issues such as media freedom, judicial independence, minority rights or the rights of migrants. In order to be authoritative, however, courts need support from political institutions at national and EU levels from the transnational judicial community and from civil society. The embeddedness in structured civil causes and organisations seems particularly relevant in the context of strategic litigation. This article aims to map out particular factors in the EU legal and institutional systems that directly affect the prospects of strategic litigation against illiberal reforms using EU law.

On the one hand, the EU legal system does not provide direct access to the Court of Justice of the EU (CJEU). The multilevel system of judicial protection in the EU means that litigation aimed at resisting illiberalism mostly needs to start before national courts, making it vulnerable to political capture of national judiciary. On the other hand, the EU law system is based on the purposive constitutional framework of the Treaties. The tendency to follow a teleological interpretation of the CJEU makes it a promising ground for advocating for new interpretations of the law in light of a changing social context. Finally, EU law is a system with a particular legal culture and a field of experts who are well-versed in applying that culture. This field does not directly overlap with the specialised lawyers who often initiate strategic litigation; who tend to be experts in the fields of migration, transparency or the environment; and who do not have a broader understanding of EU law and its integration logic.

In 2016, Colombia’s Constitutional Court recognized the Atrato River as the first water body in Latin America to have its own rights. This article interrogates the historical roots of the judicial decision declaring the river a rights holder. Drawing on my long-term engagement with social organizations as an activist, lawyer, and then researcher, I illuminate the influence of Black people from the Atrato River in the transformation of law in at least three areas: ethnic territorial rights, transitional justice, and river rights. To do so, I combine interdisciplinary theoretical critique with socio-legal research using community-based and autoethnographic approaches to trace the community methods and historical practices of political contestation deployed along the rivers. Thus, I conceptualize how an organic and distinctive style of claiming and creating rights has been constructed in the basin. Moreover, by listening to the voices of the riverine representatives, I argue that the river is a nonhuman existence that has participated in the processes of rights-making in conjunction with local communities and a broader mosaic of allied actors. However, I also outline how legal systems still function to overlook crucial socio-legal claims of marginalized and resistant communities.

Critics point to increasing private lawsuits filed by students accused of campus sexual assault as evidence that Obama-era Title IX guidance overcorrected and favored victims at the expense of the due process rights of the accused. This overcorrection narrative powerfully reshaped the debate surrounding campus sexual assault and ultimately contributed to the rescinding of the guidance. Existing analytical tools from legal mobilization scholarship – emphasizing the deployment of litigation by social movement actors – are not equipped to identify the origins and dissemination of this political narrative. Drawing from legal complaints, media coverage and interviews with lawyers, we show how private practice attorneys with no visible movement ties helped craft the overcorrection narrative from individual lawsuits by (1) embedding political claims in legal filings, (2) amplifying the narrative in media and (3) collaborating with advocates in quantifying the litigation trend. We extend prior scholarship and illustrate how lawsuits can be both a vehicle of political storytelling and the story itself. We further argue that the ideology of liberal legalism can mask the politics of private lawsuits, making litigation a useful tool for social movement efforts to mobilize support for legal reform.

With the patriation of the Constitution in 1982, the Supreme Court of Canada (SCC) inherited extraordinary political powers. In response to the Court's expanded power of judicial review, there was a sizeable increase in the number of political actors “intervening” in SCC cases. Scholars of Canadian law and politics are deeply divided on whether civil society participation in the courts—particularly as intervenors—is democratically legitimate. This important debate cannot be settled without an empirical evaluation of who intervenes. This research note provides an analysis of all the Charter cases heard by the SCC between 2013 and 2021. In contrast to the field's dominant theory on interest-group legal mobilization—the Court Party thesis—the findings reveal that equity-deserving interest groups, such as those representing women, have an irregular presence in Court. Instead, powerful actors such as governments and legal associations make up a majority of the “repeat player” intervenors. While further research is warranted, the research note concludes that without the maintenance of sufficient support structures, intervention may be unable to perform a democratizing function.