Bringing democratic values to the class action: A political analysis of class action litigation in the United States and Australia

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Copyright: Metzger, James
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Abstract
The central proposition of the thesis is that the class action, as currently conceived in both law and procedural rules and as practiced before the courts, has at least the potential to undermine fundamental values that provide the foundation for democratic society. The thesis argues that because the courts in a constitutional democracy are an institution of the democratic order, the courts should be no less responsible for upholding the fundamental values of democracy than any other democratic institution. It follows, then, that if the courts are ignoring or abdicating the responsibility to uphold fundamental democratic values, then those failings should be identified and reformed, where possible. The thesis posits that such a failure to adhere to fundamental democratic values is currently occurring in class action litigation. To illustrate this failure, the thesis compares class action law, procedure and practice in the United States and Australia. These jurisdictions have been chosen because they are both constitutional democracies that share fundamental values that should be reflected in each country's civil justice system. Further, both have mature class action regimes, such that any similarities and differences between the two countries can illustrate various aspects of the impact that class actions may have on democratic values. In order to test the argument, the thesis uses political and democratic theory to establish a working theory of democratic justice. The theory identifies three fundamental values of democracy that should be reflected in the civil justice system: personal autonomy, the ability to express preferences and representative accountability. The thesis proceeds to examine each of the major stages of the class action, from commencement through to settlement, discussing the impact that the class action has upon these values and identifying where democratic values have been ignored or undermined. The possibility of reform is considered, along with practical realities that may prevent a full realization of democratic values. The thesis concludes by recommending reforms to class action procedure and practice that would realign incentives for class action parties, practitioners, funders and judges, including through adoption of certification procedures, information sharing and the strong administration of adequate representation.
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Author(s)
Metzger, James
Supervisor(s)
Legg, Michael
Edmond, Gary
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Publication Year
2016
Resource Type
Thesis
Degree Type
PhD Doctorate
UNSW Faculty
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