ABSTRACT
The description of the use of class actions in mass torts litigation as ‘an evolutionary form of “privatised regulation”’ is not normatively inert. It has the potential to shape the way we understand, justify, and evaluate mass torts class actions, with practical implications for their development. Unfortunately, the description is inaccurate and distorting. Class actions cannot be understood as a form of regulation. Neither substantive tort law nor its enforcement can be understood in terms of regulation without serious distortion. Use of the class action procedure does not change this. Rather, class actions fall to be evaluated against procedural norms of the civil justice system. In this regard, the use of some sort of class action procedure should be encouraged. However, the successful design and management of class actions raises different questions, to which regulatory considerations are neither here nor there – and rightly so.
Higgins, Andrew and Yap, John, Class Actions in Context: Distinguishing Regulation, Tort, and Procedure (June 1, 2024).
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