Table of Contents

Class Actions in Context

Class Actions in Context

How Culture, Economics and Politics Shape Collective Litigation

Edited by Deborah R. Hensler, Christopher Hodges and Ianika Tzankova

In recent years collective litigation procedures have spread across the globe, accompanied by hot controversy and normative debate. Yet virtually nothing is known about how these procedures operate in practice. Based on extensive documentary and interview research, this volume presents the results of the first comparative investigation of class actions and group litigation ‘in action’, in the Americas, Europe, Asia and the Middle East.

Chapter 2: The culture of collective litigation: A comparative analysis

Byron Stier and Ianika Tzankova

Subjects: law - academic, arbitration and dispute resolution, comparative law, consumer law, law and society, law of obligations

Extract

Social scientists define culture differently but generally the term refers to norms, customs and practices of a particular community at a particular point in time. The relationship of culture to collective litigation may be considered from various perspectives. Different norms regarding the proper role of litigation in a society, for example, may lead to different rules about who should pay, and how much, for bringing a dispute to court. Different norms about the proper role of government relative to private parties, including corporations, may lead to different views on whether private litigation should strictly serve compensatory purposes—‘redress’—or should supplement public enforcement activities. Legal financing rules and perspectives on the role of public versus private enforcement may in turn explain rules facilitating or inhibiting collective litigation. (Parts III and IV of this book deal with these aspects of collective litigation.) A cultural analyst might investigate the ways in which national legal culture has shaped the adoption or design of collective litigation procedures. This chapter takes a different approach to culture. Instead of discussing national legal cultures or analyzing the cultural differences between jurisdictions in relation to collective litigation, we examine the culture of collective litigation itself as we see it emerging from case studies from four jurisdictions: Brazil, Taiwan, the United States (US) and the Netherlands. Despite cultural differences between these and other countries discussed later in this book, similar behavior patterns and acts emerge with regard to collective litigation.

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