Class Actions in Context
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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.
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Chapter 12: The public dimension of private collective litigation: A comparative analysis

Deborah R. Hensler and Elizabeth Thornburg


Lawyers love to put things in conceptual boxes: over here are private law, private legal actors, private litigation and compensation, over there are public law, public actors and public policy making and regulatory enforcement. Such boxes can be helpful in bringing clarity and consistency to legal analysis. They can also be misleading when they purport to draw distinct lines that are in reality quite blurry. Such is the case with the popular public/private dichotomy used in distinguishing ‘private’ litigation from ‘public’ regulation. Allegations of mass harms present a number of process options. All of these apply both informal social norms and formal legal rules about what should be regarded as harm, who should be held accountable for what, by whom, who should be compensated, by whom, and what recompense should be made if it is owed to victims. But how public and private actors and methods of processing disputes combine to achieve accountability and compensation is often a very messy business—a fact frequently overlooked in conventional legal analysis. Collective litigation has both public and private dimensions; it is too much a shape-shifter to fit neatly in a categorical box. This Part of the book, rather than re-drawing the edges of the private and public categories, shows the many ways in which they can be folded and re-assembled.

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