How Culture, Economics and Politics Shape Collective Litigation
Edited by Deborah R. Hensler, Christopher Hodges and Ianika Tzankova
Chapter 18: Class actions in context
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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