As we have noted already, debates over the modern class action have historically been divided along ideological lines, with conservative forces and corporate lobbies, such as the US Chamber of Commerce (and its advocacy body, the Institute for Legal Reform) and the European Justice Forum, seeking to restrict their expansion and delimit their purview, and progressive forces seeking to introduce and expand their scope. This debate is both instrumental and ideological in character. It should not come as much of a surprise, then, to discover the extent to which class action discourse and reforms have been animated by such partisanship. As numerous scholars have observed over the years, the strategies of the conservative legal movement have served to distort the law and perpetuate misconceptions that have negatively impacted the capacities of vulnerable people to access justice. This chapter explores the politics of the procedure and analyses the ways in which various interest groups have sought to influence, with varying degrees of success, the development of regimes and their public perception, and offers a closer look at recent developments in England and Wales.

Setting the stage

The partisanship and ideological divide that is evident in debates over class actions is, according to Martin Redish, a result of ‘litigation socialism’, which refers to the purported aims of class actions ‘to redistribute wealth from large concentrations of economic power’ to vulnerable people and communities. This redistributive facet is decried by critics who challenge the premises of redistributive justice at an ideological level, as well as the legitimacy of achieving redistributive justice through private legal action. That is why, as Redish observes, the class action debate has ‘broken down along ideological lines: the political left has reflexively favoured the device and the political right has reflexively opposed it’.

The very function of class actions as forms of collective claimsmaking has also come under scrutiny. For critics, the class action is an ‘island of collectivism in a sea of individualised dispute resolution’, which serves as a ‘rejection of liberal process-based individualism’. This rejection of liberal individualism is the ‘elephant in the room’ to the extent that the ‘inherent collectivism’ of class actions creates a tension with legal systems premised on liberal principles of individual autonomy and identity.