Can Private Class Actions Enforce Economic Regulations? Do They? Should They?

Hensler, Deborah R. (2015) Can Private Class Actions Enforce Economic Regulations? Do They? Should They? [Conference Proceedings] (Submitted)

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Abstract

Introduction: Fifty years ago representative class actions – lawsuits in which one or a few persons or entities are permitted to litigate on behalf of large numbers of other claimants who are not before the court – were unique to the United States. Although many jurisdictions permitted parties with similar claims to petition the court to proceed jointly with regard to some or all issues (termed “permissive joinder” in U.S. law2), the notion that a party could come forward of his, her or its own accord, claiming to represent similarly situated others (“the class”) without those others’ active consent was considered radical, a violation of due process or perhaps even of human rights. In the view of many legal scholars and public officials, the right to pursue a remedy for personal injury, property damage, breach of contract, or violation of a constitutional right is akin to a property right and belongs to the injured individual. From this perspective, allowing someone else to claim a legal remedy on behalf of an injured party interferes with individual autonomy. Today, however, a growing number of countries provide by law for representative class actions. The trend began in Anglo-American countries with common law systems (e.g. Australia, Canada, Israel), and then spread to civil law regimes in Asia, Europe and South America. To date, at least two dozen countries, with political structures ranging from participatory democracies to one-party autocracies, and ideological perspectives ranging from neo-liberal to communist, have adopted some sort of representative class action procedure (see Table 1). Seventeen of the 25 countries with the largest economies, as measured by GDP,3 permit class actions for one or more types of claims. Most of these procedures were adopted in the last twenty years.

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