UCHastings Instagram

Done with class for the week. #KillingIt #uchastings #1L #Section2
Instagram Photo Likes neceyh, lizziebing, ella_immanuela and 21 others like this.
Monday, March 11, 2013

Depoorter on "The Upside of Losing"

From the Abstract of "The Upside of Losing," forthcoming from Columbia Law Review:

Conventional understanding in law-reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likely to establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide substantial benefits. Unfavorable litigation outcomes can be uniquely salient and powerful in highlighting the misfortunes of individuals under prevailing law, while presenting a broader narrative about the current failure of the legal status quo. The resulting public backlash may slow down legislative trends and can even prompt legislative initiatives that reverse the unfavorable judicial decisions or induce broader reform.

This analysis revises some conventional wisdom about litigation. First, while it is traditionally understood that legal reform activists must persuade courts to recognize unattended rights or to confirm new rights and activist positions, the analysis here suggests that social changes can be obtained in litigation without requiring the involvement of courts as policymakers. Moreover, passive courts and judicial deference in fact strengthen the mobilizing effect of litigation by clearly shifting the burden to legislators and their constituents. Second, the dynamics of successful defeat in litigation shed new light on the costs and benefits involved with litigation. In the proposed framework, a plaintiff’s decision to litigate rests not simply on the probability of success but also on a tradeoff between the potential costs of a negative precedent and the political benefits obtained in defeat. Third, the mobilizing potential of adverse court decisions presents a fascinating conflict between the immediate interests of the actual plaintiff and of the litigation entrepreneur or intermediary that supports the litigation with an eye on the underlying long-term goals of a social cause. Finally, the potential benefits of adverse outcomes refute some of the criticisms about the limitations and downsides of pursuing social change through courts.

Depoorter also recently published “Copyright Fee Shifting: A Proposal to Promote Fair Use and Fair Licensing” in the California Law Review.
Go to News Archive

Share this Story

Share via Facebook
Share via TwitterShare via EmailPrint Friendly Version

Other Recent Stories/ RSS

Friday, September 19, 2014

Thinkers & Doers: Sept 19, 2014

UC Hastings community news September 11-19, 2014.
Wednesday, September 17, 2014

UC Hastings Presents Gordon Mathis Riley Environmental Law Lecture

Environmental leader William K. Reilly of TPG Capital will give the second annual lecture on Sept. 24 in Mary Kay Kane Hall.
Tuesday, September 16, 2014

Feldman on Tug of War between Supreme Court & Federal Circuit

Coming of Age for the Federal Circuit
Monday, September 15, 2014

Spotlight on 2L Sarah Barr

Barr handled “more cases, of greater complexity, than I could have expected of any law student,” says Deputy Attorney General Dorian C. Jung.
Saturday, September 13, 2014

Startup Legal Garage Client Receives First TechCrunch "Include" Grant

Black Girls Code promotes participation of women of color in the tech sector.
Go to News Archive