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Possible gains from litigation

Successful cases can set groundbreaking legal precedents, and even poorly implemented decisions can act as a catalyst for subsequent and more successful cases.

Publicity surrounding judicial decisions has often stirred greater public and civil society scrutiny of the right to education.

Many cases have led to more judicial awareness of ESC rights and international law. They have served as a valuable education technique that has subsequently affected other decisions where ESC rights are at stake.

Advocates have often used litigation as a public education tool.

Litigation can serve a useful function in subjecting government and corporate policies and practices to careful scrutiny. Defendants have been forced to try to justify, with evidence, actions and omissions which might otherwise be ignored.

The judiciary provides a forum for minorities in democracies that favour simple majorities, and it is not surprising that the bulk of ESC rights jurisprudence stems from litigation instigated by minorities or groups lacking political power. The complementary mechanism of litigation ensures the participation of those citizens who are often otherwise excluded from representative political processes.

In some cases, a litigation strategy is the only strategy available, all other avenues having been exhausted. Every advocate interviewed in India commented that the court was the last bastion for the poor, the only official institution that would listen to them. Furthermore, courts are sometimes better placed to protect the rights of minorities than are the majorities who control governments.