Hensler, Deborah R. --- "Can private class actions enforce regulations? Do they? Should they?" [2016] ELECD 1092; in Bignami, Francesca; Zaring, David (eds), "Comparative Law and Regulation" (Edward Elgar Publishing, 2016) 238

Book Title: Comparative Law and Regulation

Editor(s): Bignami, Francesca; Zaring, David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781782545606

Section: Chapter 9

Section Title: Can private class actions enforce regulations? Do they? Should they?

Author(s): Hensler, Deborah R.

Number of pages: 35

Abstract/Description:

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, the notion that a party could independently come forward, claiming to represent similarly situated others (“the class”) without the active consent of those others, was considered radical—a violation of due process or perhaps even 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. To allow someone else to claim a legal remedy on behalf of an injured party interferes with this property right and therefore 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, more than three 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 9.1).