Debates over Group Litigation in Comparative Perspective: What Can We Learn from Each Other?
Rowe, Thomas D., Jr., Duke Journal of Comparative & International Law
Modern societies all face in varying degrees the problem of possible liability for actual injuries, and prevention of threatened ones, to large numbers of people, with the injuries resulting from a single event or product or other common cause).(1) The sources of injury or threat can vary greatly--a tragedy such as a hotel fire or airplane crash; widespread distribution and use of a drug or other product such as asbestos, tobacco, or Fen-phen; claimed violations of civil or human rights; environmental pollution; and business practices such as alleged price-fixing, misleading statements affecting values of publicly held securities, insurance overcharges, and violation of consumer protection laws.
However parallel the problems, the responses of different legal systems have varied widely among nations, with varying emphases on class actions, group litigation by associations or unions, regulatory enforcement, social compensation schemes, and other approaches. In the United States the class action has for the last third of a century been the most prominent but by no means exclusive mode--and has been a focus of much controversy.(2) Only a few other nations have adopted the class action device even to a limited extent; and in many countries, particularly the civil law systems of continental Europe, resistance to the class action is strong, and responses to widespread-injury problems are sometimes limited.
How well legal systems respond, in whatever forms, to such problems is vital for reasons both concrete and philosophical. Effective national and international markets and financial systems require considerable transparency; perceived lack of the enforceable rule of law can hinder investment and growth. Unrighted wrongs can leave victims uncompensated, under-deter harmful conduct, and foster social resentment. Government enforcement, although essential, is sometimes inadequate due to underfunding, "capture" by targets of regulation, or worse. Also, public enforcement is often more effective at stopping or preventing conduct than at assuring compensation for harms inflicted, and individual rather than collective private enforcement is often not worth pursuing when losses to most or all victims are small--even if the harms are widespread, and the gains to violators (as with small overcharges to large numbers of consumers) great. At the same time, there is considerable concern for possible abuses in devices like the American class action, with some criticizing small recoveries to class members along with large fees to class counsel, "lawyer-driven" litigation, and weak suits forcing settlements because of their in terrorem value.(3)
The adequacy, or excessiveness, of current responses is the subject of mounting discussion and action. Those responsible for proposing revisions to federal courts' procedures in the United States recently considered but mostly shelved several possible changes and restrictions to class actions,(4) but may be on the verge of bringing forward new proposals.(5) Some scholars have debated the wisdom and feasibility of more or less American-style class actions in various European contexts;(6) and Scotland, Finland,(7) Sweden,(8) and Norway(9) have developed or are developing proposals--none as yet adopted--for class actions. Some forms of class action have been adopted in a few Canadian provinces,(10) in Australia,(11) and in Brazil. The South African Law Commission in 1998 produced a major report on recognizing class and public-interest actions.(12)
Yet despite the amount of interest in class actions, only fairly limited actual steps have been taken elsewhere in the American direction. The reasons for this reluctance are several and of different natures--doctrinal, cultural, economic, institutional. In civil law countries there is a powerful doctrinal emphasis on the individual nature of a legal claim of right,(13) going beyond a presumption in favor of proceeding on one's own--the rebuttable status of which in the United States underlies the American class action. …