After this course students should be able to:
- to contextualize the legal challenges posed by the SDGs 7, 10,11,12,13 en 16;
- Understand and explain the different theoretical framework regarding ‘public interest;
- Identify and evaluate the legal issues regarding legal standing;
- Explain and analyze the most important private and public legal instruments available for holding states and companies accountable;
- Apply and evaluate legal procedures available for protecting general interest issues;
- Understand and explain the interaction between private and public law in a concrete case;
- Distinguish and present facts, evidence, and causality.
Climate change and biodiversity loss pose the greatest challenges for current and future generations. Their ramifications therefore have rapidly come to dominate politics, law and science. Citizens and NGOs feel that such action is long overdue, however, and increasingly are appealing to courts to order states to discharge their public responsibilities: so-called public interest litigation. Other types of types of public interest litigation could concern, poverty-related issues, discrimination, consumer protection, data privacy, and free speech.
An internationally known example is the Dutch court case Urgenda. A civilian platform with members from the business community, think tanks and NGOs, initiated a civil case against the Dutch State claiming the State took insufficient efforts to address climate change. In a world first, the judge in Den Bosch ruled in favour of Urgenda 4 years ago. On 20 Decembet 2019, the Dutch Supreme Court upheld the previous decisions in the Urgenda Climate Case, finding that the Dutch government has obligations to significantly reduce emissions in line with its human rights obligations. Meanwhile, more than 800 cases worldwide - for example in Ireland, Norway, the US, Belgium, Switzerland and New Zealand - have been brought in which citizens or NGOs s are trying to hold states or the business community (eg Milieudefensie v. Shell) accountable for the effects of climate change.
Public interest litigation is also emerging in other areas, raising fundamental questions about law that transcend any particular legal discipline: private law, public law and European, and international law are intertwined in these cases.
This course observes and explains the global rise in public litigation, and zooms in on the practice of public interest litigation in the Netherlands. The overarching focus of the course is addressing structural problems of a public nature through individual litigation. This is the core of public interest litigation and is the characteristic that distinguishes it from litigation in general.
The course considers how public interest litigators identify problems to address through litigation, and how they develop a litigation strategy, and when they are considered to be successful. This raises also normative/ethical questions about the narrative-frameworks that PIL necessarily places on a dispute / structural injustice. For example, the Trafigura case against the harbour and the municipality of Amsterdam resulted in findings of unlawful action and large fines, but these have no direct impact on the communities harmed by the eventual dumping of waste. Students explore issues associated with representation of a public interest (standing). The role of courts (both in an administrative and a civil) when confronted with regulatory failure is discussed, in particular the fine line separating judicial activism from judicial engagement. Students also learn about the challenge to present facts, evidence, and arguments pertaining to causality.
The course also is an investment in research and writing skills. Students study documents (e.g. briefs) from important public-interest cases and other readings to unpack the rhetorical and analytical tools used to persuade judges. Students also learn how to conduct legal research by finding, classifying and interpreting legal sources. Students develop these skills by preparing drafts of two pleadings in a single case, and receive feedback on their writing from the lecturer and their peers.
MODULE 1: Introduction, trends, actors and issues
MODULE 2: Factfinding and evidence in the courtroom
MODULE 3: Case study: Climate litigation
MODULE 4: Strategic Litigation in Business & Human Rights
Readings will include articles, legal pleadings, and case studies that allow analysis and exploration of the tensions and challenges that exist within legal systems for public interest litigation.
An important objective of this course is to teach students to write a convincing public interest brief. The grade is based on a (…) word brief that the student needs “file” at the end of class. You may write about any legal issue representing an public interest that you think is interesting or you may select a court case in which the merits briefs have not yet been filed, a pending case before court of appeals in which briefs have not yet been filed.
Components in grading are: seminar assignments (50%), and the grade for the final brief (50%).
|Written test opportunities|
|Written test opportunities (HIST)|
|Schriftelijk / Written||EXAM_01||SM 1||1||23-12-2020|
|Schriftelijk / Written||EXAM_01||SM 1||2||29-01-2021||Required materials-Recommended materials|
|Literatuur zal een samenstelling zijn van artikelen, juridische documenten en specifieke casus.
Readings will include articles, legal pleadings, and case studies that allow analysis and exploration of the tensions and
challenges that exist within legal systems for public interest litigation.|