Producing Fundamental Rights in Paris and New York: Mapping the Space of Strategic Litigation

Author: Charlotte Thomas-Hébert This paper stems from an ongoing research project, soon to be submitted to the CNRS (French National Centre for Scientific Research), which analyzes strategic litigation as a form of political practice in France and New York State. Rather than assessing whether it is inherently democratic or undemocratic, the project adopts a sociological and political lens: it examines who uses strategic litigation, how it is deployed, and how it contributes to shaping (or restricting) fundamental rights. Situated at the intersection of political sociology, sociology of law, new legal realism, and critical theory – including critical race theory and queer studies – the project treats law not as a neutral safeguard of rights, but as a contested terrain where public freedoms are politically constructed and institutionally negotiated, particularly within legal arenas such as the courtroom. One major obstacle in studying strategic litigation is the lack of foundational definitions. Unlike, for instance, Rawls’s hegemonic framework for civil disobedience, the field remains conceptually fragmented and lacks clear boundaries. Even the terms themselves are unstable: scholars and practitioners variously use “impact litigation,” “strategic litigation,” “public interest litigation,” or “cause lawyering” without conceptual consensus. To address this, the paper proposes a methodological framework inspired by Laure Bereni’s espace de la cause des femmes: a cartographic approach to mapping the “space of impact litigation” (l’espace du contentieux stratégique), using France and New York State as a case study. This cartography identifies key actors – lawyers, NGOs, funders, academics, and political intermediaries – across five interlocking spheres: judicial, associative, academic, professional, and political. It maps their networks, ideological positioning, institutional affiliations, and strategic alignments, while revealing the divisions and hierarchies that structure access to legal mobilization. Drawing on comparable sources across both sites, the method enables a systematic, non-normative analysis of how this space is organized, how power circulates within it, and how certain issues become legible as legal causes while others are excluded. By comparing two contexts marked by democratic erosion – with the United States undergoing an authoritarian shift characterized by judicial polarization, procedural attacks, and the weaponization of law – this cartography reveals how strategic litigation functions as a form of political regulation. It bypasses conventional legislative channels, like direct action, to redefine the boundaries of rights. Yet it does so within a structured space shaped by professional hierarchies, funding models, and institutional constraints. This paper will present the methodological framework and argue that mapping the space of impact litigation offers a rigorous, non-normative way to study its political effects. Rather than taking a stance for or against strategic litigation, the approach enables a comparative analysis of how this practice reconfigures the relationship between law, politics, and collective contestation in contemporary democracies.