Hensler, Deborah R.; Thornburg, Elizabeth --- "The public dimension of private collective litigation: A comparative analysis" [2016] ELECD 754; in Hensler, R. Deborah; Hodges, Christopher; Tzankova, Ianika (eds), "Class Actions in Context" (Edward Elgar Publishing, 2016) 259

Book Title: Class Actions in Context

Editor(s): Hensler, R. Deborah; Hodges, Christopher; Tzankova, Ianika

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783470433

Section: Chapter 12

Section Title: The public dimension of private collective litigation: A comparative analysis

Author(s): Hensler, Deborah R.; Thornburg, Elizabeth

Number of pages: 20

Abstract/Description:

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.