Upping the Ante: Collective Litigation in Latin America

Abstract

This work contends that Latin America has launched a true revolution on collective rights: moving beyond the paradigm of group entitlements, which concern a determinate — though potentially enormous — collectivity, to that of diffuse entitlements, which generally pertain to society as a whole. Latin American jurisdictions have created innovative procedural mechanisms in this area: the collective writ of protection for the realization of group rights, the popular action for the civic vindication of diffuse entitlements, and the public civil action for the official enforcement of both kinds of rights. The U.S. legal order has much to learn from a comparative reflection upon these developments. It could, accordingly, open up to the creation of a universally available citizen’s suit, the institution of an autonomous state body with power to file complaints on behalf of communal and societal interests, the concession of standing to organizations (as well as individuals) to pursue class suits, and the introduction of a single, straightforward classification under Rule 23(b) of the Federal Rules of Civil Procedure.

The article concludes by calling attention to the tension between Latin American efforts to implement trans-individual guaranties and the sporadic precariousness of the rule of law in the region. It argues that, beyond adopting new measures or punishing violators more severely, the countries affected must broadly enhance the legitimacy of legal norms by renewing their commitment to democracy, as well as to other ideals, such as the rule of law itself, personal freedom, and (above all) solidarity.

Keywords: Collective Litigation, Latin America, Collective Rights, Group Rights, Diffuse Rights, Procedure, Class Actions, Comparative Law, Citizen Suits, Standing, Rule of Law, Democracy, Solidarity