The impact of public interest litigation: the case of socio-economic rights

Abstract

In the global turn to rights, courts are often reified as central actors in processes of social transformation. In this respect, it is worth recalling the clear-eyed and grounded perspective of Andrea Durbach, who emphasised both the potency and limitation of litigation, as well as the diverse functions of courts. This Festschrift essay assesses the transformative power of socio-economic rights litigation. It begins by setting out the different reasons as to why we would expect (or not) judicial intervention on socio-economic rights to engender social change and then distils some central methodological parameters for assessing and undertaking empirical research. This is followed by an overview of the literature with case studies on housing rights litigation in South Africa and education rights in the United States. This reveals significant variance in material and political outcomes for applicant individuals, communities and social movements but points to key determinants of ‘success’—especially the role of social mobilisation, creation of broad-based alliances, and smart remedies.