From Courts to Contracts: The Nexus between Strategic Litigation and Collective Bargaining

The term “strategic litigation” is increasingly used by labour-law scholars to denote high-profile cases typically promoted or supported by trade unions. This paper surveys how the concept is framed across disciplines and examines expectations about its significance for workers and unions, drawing on industrial relations, socio-legal studies, and social-movement theory. While scepticism about law’s transformative capacity remains central to understanding how social actors engage with legal institutions, it does not foreclose episodic challenges to the status quo. On this premise, the paper analyses the dynamic interplay between strategic litigation and collective bargaining, considering how litigation shapes bargaining processes and outcomes. Traditionally, the adversarial character of litigation and the delegation of dispute resolution to a third party have been viewed as counterproductive to collective-bargaining objectives; accordingly, litigation is often cast as a last resort. Yet strategic litigation can also generate leverage for future negotiations: by protecting workers’ and unions’ rights, establishing precedents that structure the bargaining process, and reshaping the broader context in which bargaining occurs. From this perspective, litigation and collective bargaining can be complementary. The paper argues that whether strategic litigation undermines or supports collective bargaining cannot be determined in the abstract; its effects are highly context-dependent. It calls for further research into the conditions under which litigation can effectively advance collective-bargaining goals.