The opportunity to offer advice to those who are considering the adoption or modification of class or group action procedures for other legal systems is both welcome and distracting. It is welcome because it forces a change of perspective in the attempt to contemplate adaptation of United States practice to different cultures, political structures, substantive laws, and courts with dissimilar surrounding procedures. It is distracting because there are so many different levels of possible comparison that the choice of perspective must be tailored to the immediate occasion. It is tempting to take on the most important sets of questions--for example, to ask if non-governmental individuals, organizations, or lawyers should replace individual litigants in larger scale litigation so as to facilitate efficiency or remedy wrongs that otherwise would go unredressed. These questions can be addressed only within the framework of a particular society and its political and governmental structures. There is little point in attempting to provide answers good for all settings. At the other end, however, there is no point in attempting to address matters of minute detail. A more suitable middle ground can be found in a series of questions raised by more than eight years of witnessing the work of the Advisory Committee on the Federal Rules of Civil Procedure as it has grappled with possible revisions of Civil Rule 23. These questions are more helpful than even provisional answers would be--the questions are much the same for most systems, while the answers often will be different.
I. FRAMEWORK QUESTIONS
A. Should We Do It at All?
The broad question is whether to create a procedural vehicle that authorizes a real person, private organization, lawyer, or public entity to conduct litigation that enforces or terminates the rights of someone who does not participate directly as a party. The common concept is that the party in court somehow "represents" the person who is not in court. Litigation by representation is a reasonably familiar concept: the trustee of an express trust represents the beneficiaries, the representative of an estate binds those who claim through the estate, and so on. The more specific issue within the broad question is whether representation can be justified by the number of people who may have similar rights (or duties) growing out of some factually related nexus of events and who are not otherwise related to each other or to the representative. The number may be small--examples include a class of seven or more in Australia,(1) and two or more in Canada.(2) In deciding on the need for representation in this setting, one must first determine what purpose is to be served.
In determining purpose, a comparison to alternative means of enforcement is required. Why do we need representative group litigation at all? Much of the pressure for group litigation springs from the perception that more explicitly public means are not adequate to meet a society's felt needs for enforcement. Government agencies may lack resources or will to enforce public or private rights, or may be too closely aligned with wrongdoers, public or private.
Alternative means of private enforcement may also fail. The most basic comparison is to individual litigation, one plaintiff at a time. But this comparison extends to many alternative means of joining multiple claims: voluntary joinder of two or more plaintiffs in a single action, consolidation of separate actions separately initiated (a device that may include actions initially filed in different courts), intervention by new parties in litigation commenced by others, "test case" litigation, resort to "nonmutual preclusion," and bankruptcy.
When comparing representative group litigation with the alternatives, the numbers required to support group litigation should be examined. If the number may be as few as two or seven, the comparisons to voluntary joinder, consolidation, intervention, and other simple devices is different than when the number is 50, 500, or higher. …