The Class Action as Sheriff: Private Law Enforcement and Remedial Roulette
THE LAW OF REMEDIES: NEW DIRECTIONS IN THE COMMON LAW, J. Berryman, R. Bigwood, eds., Irwin Law, October/November 2008
25 Pages Posted: 11 Sep 2008 Last revised: 21 Sep 2009
Date Written: 2007
This essay will explore the effect of developments in class action law and practice upon remedial law, and investigate the state of health of the compensation principle.
The compensation principle requires that plaintiffs should as nearly as possible be awarded a sum of money that will place them in the same position as if they had not suffered a wrong. The principle has occupied a central position in modern private law to provide standing to plaintiffs and to limit the powers of courts. Yet commentators such as Berryman argue that the compensation principle is in decline and suffering a death by a thousand cuts. Some of the deepest cuts have been inflicted by the modern class action.
This argument will be examined by reference to class actions in Australia, Canada, and the US, using the vitamins antitrust litigation in those jurisdictions as a case study.
The overall hypothesis is that whilst the compensatory principle is being assailed by the calls for the class action to deter corporate misconduct, the principle still acts as a moral compass. Corrective justice has not entirely yielded to instrumentalism, but the current autonomous, individualistic, and substantive law model of corrective justice under private law needs to adjust to group procedural justice as practised in law firms and in the courts.
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