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Matthew Nicholls - April 19, 2018

Academic Armchair: ‘Cinderella, you shall go to the ball”: a conversation with Ketan Jha

In this week’s edition of the Academic Armchair the Features team sat down with Ketan Jha, an associate tutor of Sussex Law School. Alongside his work in the university, Ketan is involved in various legal challenges, including an ambitious attempt to help students sue the UK government. We asked him a series of questions about his work, his life as an academic and teacher and the article about Cinderella that was wrongfully attributed to him by Yale Law School. Our conversation with him spanned a wide list of topics, ranging from climate change litigation to working for an investment bank. Here’s what he had to say…

Ketan works with students in a legal as well as educational capacity. We asked him about his decision to help students sue the government.

Why exactly are you suing the government?

Scientific consensus shows us that the UK government is not doing enough to tackle climate change. At the current rate, we are at a high risk of encountering ecological catastrophe in the next 50 years.

This means mass migration, islands submerged in the sea and mass species extinction.

Because of the gap between our current climate change  mitigation efforts and what is needed to reduce the impact of these consequences, we are holding the UK government to account by asking them to make their climate strategy consistent with science and international law.

Luckily, parliament passed a climate change act in 2008 that mandates long-term action. The organisation I work for, Plan B Earth, are simply seeking for the government to hold up its end of the bargain.

What specifically would be the desired outcome of your legal action?

If our action is successful, the government will be required to review its carbon targets under the 2008 act.

This means the department of business, energy and industrial strategy would need to create a comprehensive plan to reduce reliance on fossil fuels, bolster renewable energy efforts and regulate the agricultural sector.

We are not looking for the court to order which cuts need to be made- but only that the strategy be consistent with what science tells us is necessary.

Why is it important for students to take this kind of action?

Law is traditionally seen as arcane and inaccessible. It is something that happens in the courtroom, filled with wigged barristers and posh accents.

By getting students and young people involved, we are also trying to put the power of law back in the hands of the average person.

This is part of a tradition known as public interest litigation. The most famous examples are actions during the civil rights movement in the United States, fought by the National Association for the Advancement of Coloured People, to end racial segregation; and, in the UK, similar cases were filed over the health effects of tobacco and asbestos.

What unites public interest claims is lawyers suing on behalf of those who could not normally access the legal system.

What we are trying to do is to modify this representative paradigm and directly get the public involved with legal proceedings.

Contemporary climate cases achieve this with accommodation of mass claims and crowd-funding.

A claim filed by an NGO in the Belgian supreme court now has 35,000 claimants suing their government. Climate cases in the UK alone have attracted more than £80,000 of crowd funding.

Do you feel this action sets a precedent for student political engagement, and do you hope others will take similar action?

In short, yes.

Our case serves as a proof-of-concept for what I call ‘networked public interest litigation’. Such claims are networked because lawyers across jurisdictions speak to each other and coordinate claims, but also because their political currency relies on grassroots movements to spread the word and apply political pressure.

A crucial feature of these ‘networks’ is a concerted collaboration between law in the courtrooms and outreach on the ground.

I sincerely hope that, where appropriate, students will take political claims to the courts, where they cannot find recourse elsewhere.

As a teacher at Sussex, you engage with students every day. How has this affected your relationship with the law, and what have you learned from your experience at the university?

I think law often attracts driven students who aren’t sure whether they want to pursue legal practice or not.

My favourite teaching moments are when students who are just slogging through get a spark because they care about the political and legal issues in a case.

Sometimes, this is about topical issues like migrants’ rights or climate change. Sometimes, though, students get excited at seemingly drab topics, like whether local authorities should be able to purchase complex financial instruments from foreign banks.

I think it is the duty of law teachers to suss out that spark.

I love when students deeply research an area or a potential claim and come to the classroom with more specific knowledge than I have. I view teaching as a two-way street, which is something I learned from my supervisors at Sussex, Donald McGillivray and Emily Lydgate.

As I obtained my first two degrees from Sussex, my supervisors and former teachers heavily influenced my approach to the law.

I think Sussex really rewards independent research, interdisciplinarity and students who go out of their way to find a research niche.

Equally, the law school does a good job of ensuring that academic support is there for students who need help.

My experience at the university has always been split between theoretical legal inquiries and practical work. As an undergraduate, I had the privelige of being a law clerk for the US government, as well as working for an investment bank, a tax authority and a charity for disablility advocacy.

During those periods of employment the university was very flexible about deadlines and logistics, and I feel the university’s reputation helped me obtain these opportunities.

Working with students often makes me remember how difficult the LLB is. You’re expected to memorise a truly terrific amount of content.

One thing I learned from teaching is that students really do benefit from a mix of theoretical and practical education- especially in the law.

It’s one thing to read about the outcomes of legal outcomes and court decisions, but I think students get excited when they get to go through the motions of starting an action or even helping their friends with legal issues themselves.

Your research seems to have taken you in some interesting directions. Is there anything upcoming in your near future as an academic that you’re excited about?

I received word recently that I will be presenting a paper in Glasgow at the International Union for the Conservation of Nature’s Academy of Environmental Law’s Annual Conference.

I’m very excited to go to Scotland and visit Drygate Brewery, and as many whisky distilleries as possible. I’m also looking forward to meeting a variety of Scottish wildlife. I’ve heard their cows are rambunctious.

I’d also like to shoehorn into this interview- pun intended-  my anecdote about Cinderella. On the first of March, while in the throes of a violent bout of food poisoning, I received a congratulatory email from Yale Law School and the National University of Singapore, informing me that my paper, entitled ‘Cindarella, you shall go to the ball: rediscovering the potential of private law in climate change litigation’, was accepted and that both universities would pay for my airfare and living costs for the conference.

In the haze of my illness, I glossed over the fact that this was not my paper’s title.

It was only three days later, when I received an email from the conference coordinators apologising for the mistake and confirming my paper’s rather more drab name (‘Networked public interest litigation: a novel framework for climate claims’) that I realised what had happened.

I have now made it my mission to figure out the content of the Cinderella paper without knowing the author- if any readers can help me with this, I would appreciate it.

Your upcoming paper develops the idea of networked litigation: could you tell us more about how you are approaching your research, and what you anticipate your findings will be?

The past few years have seen an explosion in the number of climate change litigation claims around the world.

Most recently, an NGO in Colombia called Dejusticia has alleged that government inaction on deforestation violates the public’s fundamental right to a healthy environment, which is crystalised in article 79 of that country’s constitution.

In their press release, they explicitly mentioned action being taken by the mayor of New York City and organisations in the Netherlands as an inspiration.

It is rare that lawsuits in different jurisdictions speak to each other like this. The specific legal arguments vary wildly.

The claim in Colombia is about fundamental rights. Our claim in the UK is about public law, while a famous case in the Netherlands was about proving the state was negligent in the same way that a reckless driver might be.

Despite differing legal rationales, public communications about these cases present all of them as human rights battles.

This disjunction between legal theories and public presentation is a unique feature of contemporary collective lawsuits.

We know that the interaction between these two factors is meaningful from experience in South Africa. Last year, an organisation filed a lawsuit to block the construction of an immense coal mine that would negatively affect water quality and produce tonnes of carbon.

Their victory forced an environmental reevaluation of the mine, but it was public protests- coordinated alongisde the legal action- that resulted in a French energy company withdrawing financial support for the project.

Such cases indicate it is the networked interaction of direct action and strategic lawsuits that can produce structural change.

My research explores the potential for synergy between the  law and laypeople in fighting  climate change, using the South African case as one model.

My research will show that these coordinated lawsuits, while not panacea to our planetary woes, are an important part of the political toolbox.

How do you approach the research aspect of academia? What are the challenges of balancing research and teaching?

It’s really very difficult.

The teaching burden for academics is only increasing, but there is now a further expectation that we publish or perish.

With regulatory changes like the Teaching Excellence Framework and higher fees, there is a real drive to measure and quantify the quality of academic work.

Experimental and interdisciplinary research stands to bear the greatest brunt of harm because there are not always suitably ‘ranked’ fora to publish such work.

It doesn’t help that while these obligations become more onerous the financial incentives to become an academic are drastically decreasing. We see this particularly in the present pensions dispute, where spurious valuations lie at the heart of a projected deficit.

No-one really stands to gain from these disputes, but law, medicine and the natural sciences are particularly affected. Academics in these fields are usually giving up lucrative commercial work to pursue academia.

For example, corporate lawyers in New York City make upwards of £140,000 fresh out of their degrees- nearly four times the starting salary for a lecturer.

Despite these challenges, many of us stay in academia for the unique sense of community and flexible work environment.

My approach to research is centred on interdisciplinarity. Often we think of the law as insular and seperate from other academic fields, but my research attempts to incorporate sociological methods and contemporary analytic philosophy into examination of climate change.

Specifically, I think the often obtuse post-Marxists like Giles, Deleuze and Guy Debord have quite a lot to say about the nexus between humans and the environment.

Equally, I don’t think sociologists have examined closely enough the conditions in which legal actions are produced.

I hope my research will set a precedent for the value of applying both.

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