five - Conclusion
Published online by Cambridge University Press: 04 January 2022
Over the past 20 years, class actions have proliferated globally to more than 35 states. A basic lesson that this globalization of class actions has taught reformers is that legal transplants cannot be wholly adapted into new jurisdictions without accounting for differences in legal culture, history, and politics, including the role of litigation in democracy, the extent to which the use of private enforcement aligns with a state's regulatory governance framework, and the desirability of economically enabling private actors to pursue litigation for public goals. The proliferation of class actions does nevertheless reflect a recognition by policymakers of the need for new procedures to adequately protect groups of vulnerable people against powerful private (and public) entities. These are not, it must be reiterated, efforts to create new substantive rights, but rather simply to introduce procedural mechanisms to give effect to existing substantive law.
In recent years the empowerment of previously marginalized social groups has also contributed to the growth of an accountability culture in which holding wrongdoers to account through legal means has come to be viewed as a viable pathway to justice, particularly where established political channels of influence remain out of reach. Indigenous peoples, women, LGBTQ, racial and ethnic minorities, and disabled people have all deployed class actions as a means to advance their causes and access justice, whichever form this justice may take. In spite of attempts to portray such justice-seekers as engaging in abusive litigation motivated by easy money, such groups often do not (only) seek compensation for their incurred harms, but also public apologies, educational and medical programmes, cessation of wrongful activity, and social recognition of loss.
Despite this proliferation, however, and despite the recognition of the prevalence of collective justiciable problems, many states have introduced extensive ‘brakes’ or so-called ‘safeguards’ to limit the efficacy of the new procedures, based in no small part on fears of importing ‘US-style class actions’ and the successful lobbying efforts of corporate and defendant advocacy groups. These have included limiting class actions to a single sector, strict standing requirements, prohibitions on damages, and attacks on funding sources (notably third party funders). In England and Wales these ‘brakes’ have been a constant feature of proposed reforms.
- Collective Access to JusticeAssessing the Potential of Class Actions in England and Wales, pp. 121 - 124Publisher: Bristol University PressPrint publication year: 2021