Class Actions in Context
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Class Actions in Context How Culture, Economics and Politics Shape Collective Litigation

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 18: Class actions in context

Deborah R. Hensler

Extract

Legal scholars who write about class actions, group litigation and other collective litigation focus on statutes and rules. Public policy-makers who debate adopting collective procedures focus on consequences. Neither scholars nor policy-makers typically pay much attention to the circumstances that give rise to the mass claims that the procedures address, the cultural values and institutions that shape beliefs about when people and businesses should be compensated for losses, the economic arrangements that facilitate or deter litigation and the politics that shape decisions about who will be responsible for paying compensation to whom and how much. The case study research reported in this book highlights the importance of these contextual variables for understanding the functions collective litigation plays in different legal regimes and polities and the roles of parties, lawyers, judges, politicians and civil society in shaping litigation. By juxtaposing the stories of how collective litigation arose and evolved in different contexts, it is possible to discern both the common features of different jurisdictions’ collective litigation processes and the importance of regime-specific characteristics in determining the outcomes of collective litigation. Close observation of class actions and non-representative group procedures reveals a more complicated picture of the challenges mass claims present than is typically suggested by the debates over the adoption of collective litigation procedures. Qualitative studies of a small number of mass litigations leave many empirical questions unanswered.

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