Explaining variation in the use of European litigation strategies

It is well established in the interest group literature that private interests seek to effect
policy change both by lobbying and litigation (Baumgartner and Leech, 1998: 152). A number
of survey studies in the U.S. have established some basic empirical facts regarding private
interests’ use of lobbying and litigation strategies (Schlozman and Tierney, 1986; Knoke,
1990; Walker, 1991; Nownes and Freeman, 1998). These studies show that private interests

Although this is hard to do where the ECJ has interpreted the treaties, in its decisions, because that is effectively
constitutional interpretation which legislation cannot modify.
more frequently employ access than litigation strategies. Although it is sometimes assumed
that litigation is the preferred strategy of minority interest groups, where actors do litigate,
contemporary research tends to suggest that factors such at group resources and the
institutional environment in which groups operate are motivating factors in the choice (Olson
1990, Wanemaker 2002, Krishnan 2002). Whether private interests undertake voice or
litigation strategies more often remains unclear. Indeed, while protest politics are significantly
less popular with private interests than litigation, information politics seems to be at least as
important as litigation. Notwithstanding the insightful results of these empirical studies, very
little is known about what effects the choice of private interests to pursue lobbying rather than
litigation or vice versa.
There is only a small theoretical literature, which addresses this issue. It is common
for authors to examine lobbying and litigation as a sequential choice, in which the latter
follows the former and requires that interest groups make decisions about how to allocate
resources over the actions as two stages in the policy cycle (De Figueiredo and De
Figueiredo, (2002), Holburn and Vanden Bergh 2002) . Although the question of how firms
choose to allocate limited resource between the two actions is also the central focus of this
article, it is not always appropriate to conceptualize the choice this way, at least in the EU:
Interest groups do not inevitably wait until the end of the policy cycle to litigate, reserving it as
a ‘threat’, but also do so as another way of initiating policy change. There is also a great
tendency in the literature to focus on how features of government institutions shapes the
choice to litigate or lobby, but to overlook how the features of firms influence this choice. (But
see Rubin, Curran and Curran 2001, who argue that firms may have a “technological
advantage” for litigating or lobbying that influences their choice, although they do not explore
the nature of this advantage.)