Incentive effects of class actions and punitive damages under alternative procedural regimes

In an economic perspective, punitive damages and class actions can be viewed as sharing a common economic function—creating optimal deterrence. Building on Parisi and Cenini (Class actions for Europe: perspectives from law and economics, ELGAR, 2010), we study the effect of alternative procedural regimes on the effectiveness of punitive damages and class actions. Specifically, we compare the workings of punitive damages and class actions in the American and English (“loser-pays”) regimes. Our findings help explain the limited use and late adoption of class actions and punitive damages in Europe.     

Seeking rents through class actions and legislative lobbying: a comparison

This article analyzes class actions as a technology that groups may use in their rent-seeking activity, in addition to other rent-seeking methods such as legislative investment within the political market, when they seek to achieve favorable decisions from decision-makers—courts and legislators. It claims that groups may make their choice between various rent-seeking technologies according to their sensitivity to the problem of free riding. Therefore, it analyzes the effect of the legal instruments that facilitate class action lawsuits and collective litigation in most countries upon the rent-seeking strategies of groups, as compared to rent-seeking through legislation.     

Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal's decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal's decision arguably paved the way for further data protection/privacy claims to be brought as opt-out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court's reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re-enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.     

Legal Transnationalism: The Relationship between Transnational Social Movement Building and International Law

This article examines the compelling enigma of how the introduction of a new international law, the North American Agreement on Labor Cooperation (NAALC), helped stimulate labor cooperation and collaboration in the 1990s. It offers a theory of legal transnationalism—defined as processes by which international laws and legal mechanisms facilitate social movement building at the transnational level—that explains how nascent international legal institutions and mechanisms can help develop collective interests, build social movements, and, ultimately, stimulate cross‐border collaboration and cooperation. It identifies three primary dimensions of legal transnationalism that explain how international laws stimulate and constrain movement building through: (1) formation of collective identity and interests (constitutive effects), (2) facilitation of collective action (mobilization effects), and (3) adjudication and enforcement (redress effects).     

美、德新型惩罚性赔偿对我国《消法》修订的启示

以大陆法系划分公法与私法的观念来看,国内外原有的惩罚性赔偿实为私法社会化属性的责任。近年来,美国、德国惩罚性赔偿制度有了新的发展动向,出现了新型惩罚性赔偿即集体公益罚金形态,它注重直接保护消费者等集体公益,已不再为私法社会化属性的责任。正在进行的我国《消费者权益保护法》修订可从中得到重要启示。     

Sub-Optimal Justification and Justificatory Defenses

Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are (exceptionally) justified—usually since they prevent (more serious) harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies (also) to actions that do not reflect all pertinent principles optimally due to (unjustified) mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal (particularly criminal) liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification—and accordingly wrongfulness—is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical (negative) reaction is in place only with regard to actions whose wrongness is above a minimal threshold.     

Restitution in America: Why the US Refuses to Join the Global Restitution Party

In the past generation, restitution law has emerged as a globalphenomenon. From its Oxbridge home, restitution migrated tothe rest of the Commonwealth, and ongoing Europeanization projectshave brought the common law of restitution into contact withthe Romanist concept of unjust enrichment, further internationalizingthis movement. In contrast, in the United States, scholarlyinterest in restitution, in terms of books, articles, treatises,symposia and courses on restitution, is meager. Similarly, whilerestitution, equity and tracing cases receive considerable treatmentat the highest levels of the English judiciary, US courts seemuninterested in these issues, rarely producing the theory-ladenopinions that have become quite common in the House of Lords.The situation is particularly curious because restitution isgenerally thought to be the invention of late nineteenth-centuryAmerican scholars. This article explains this divergence. Iargue that the Commonwealth restitution discourse is largelya product of pre- or anti-realist legal thought which generatesscepticism within the American academic-legal establishment.The article identifies the two dominant camps in American privatelaw thought—left-leaning redistributionalists and thecentre-right legal economists—and shows that neither hasany use for the Commonwealth's discourse. I conclude by analysingthe emerging drafts of the Restatement of Restitution and forecastthe future of American restitution law.     

A Tory High Modernism? Grand Plans and Visions of Order in Neoconservative Ontario

Trends toward mass incarceration in the United States and elsewhere raise compelling questions about the social purposes of prisons, and their role in the consolidation (and/or privatization) of the neoconservative state. This article examines two moments of penal reform that were historically distinct, but remarkably similar in their shape and intent. Mike Harris’s Progressive Conservatives won control of Ontario’s provincial government in 1995, and undertook a wide-ranging program of institutional and social restructuring that was intended to transform Canada’s industrial heartland. Penal reform was central to this agenda, but Conservative efforts here were remarkably similar to those 160 years before, when Canada built its first penitentiary. This article compares these two moments of flux using a theoretical framework developed by James Scott. He argues that the grand plans of ‘high modernist’ reformers, while seeking to make society more ‘legible’ and ‘rational’, tend to employ simplifications—especially visually pleasing ones—which obscure and suppress insights that might be gained from the ‘practical knowledge’ of those closer to the ground. They do this at their peril, for grand plans tend to fail for lack of such knowledge. The article argues that Ontario’s experience fits neatly into these categories, except that the aim of reformers here has been to restore an old social order, rather than to build a new one.     

Regulatory justice: A re-examination of the influence of class position on the punishment of white-collar crime

The issue of class bias in response to white-collar crime offenders remains unresolved because of data limitations, research design problems, and debates over the conceptualization of core factors. One problem is that previous research failed to consider the full range of legal actions that can be taken against a violator of regulatory law; it typically focuses only on criminal sanctioning when addressing the issue of bias. Recent data on formal actions taken against federal securities offenders were used to reconsider the issue of bias. This analysis, however, examined the entire range of legal actions taken against offenders—civil, administrative, and criminal. I used a logistic regression analysis to determine the sampled offenders' likelihood of receiving a punitive sanction. Both principals and “contrepreneurs” were significantly less likely to receive a punitive response than managers and other legitimate actors in the workplace. Securities professionals (other than principals) were particularly vulnerable to punitive sanctions if they were affiliated with larger firms in the industry, as opposed to smaller firms. These findings suggest that the relationship between class and the punishment of white-collar offending is more complex than suggested previously.     

Legitimación en las acciones colectivas

This paper analyses the standing in collective actions to enforce undefined and collective interests as well as homogeneous individual interests, according to the Brazilian legal doctrine and legislation. He treats the types of class actions, the standing to bring a suit and the adequate representation in the Latin American countries that have developed these matters: Argentina, Brazil, Chile, Colombia, Mexico and Uruguay. Of Argentinean Law, the author examines the collective amparo contained in article 43 of the National Constitutional, and the environmental and consumer’s procedures. Of Brazilian Law, the author studies the actions to enforce undefined and collective interests and homogeneous individual interests, contained in the 1990 Consumer’s Defense Code. The Brazilian Law guidelines have influenced the Model Code of Collective Procedures for Iberoamerica and the Chilean and Mexican Laws. In Colombia the collective interests are enforced by popular actions, and the equivalent to the homogeneous individual interests are defended through group actions.     

Strategies of Rupture

The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’, or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom (the focus here is on the tactics of rupture of the lawyer Vergès) and outside it, a return to a strategic understanding of law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon of communicative exchange.     

Legal moralism and retribution revisited

This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a “reluctant retributivist.”

The Enemy Within: The Outlaw Motorcycle Gang Moral Panic

When there is a period devoid of sensationalistic biker news, the public’s concern about outlaw bikers can be quite low. All it takes is one overt act of violence to heighten the public’s fear of Outlaw Motorcycle Gangs. Outlaw Motorcycle Gangs are the most current “dangerous class” which have been the subject of a moral panic in Canada. Outlaw Motorcycle Gangs as organized crime bodies are deemed to be the single most serious threat to the country—the enemy within. The gang war in British Columbia is fuelled by drugs supplied by the Hells Angels and there is a wide spread fear that these evildoers are trying to harm and tear apart the fabric of our society. This article provides a critical in-depth analysis of the construction of an Outlaw Motorcycle Gang moral panic with the focus on Canada. The roles played by the media, politicians, and the public in using isolated, violent incidents to support their interests will be examined along with the interactions between these groups and the resultant punitive actions directed toward members of Outlaw Motorcycle Gangs.     

Can Saying Something Make It So? The Nature Of Seditious Harm

In this paper, I redress an analytic deficit in debates about sedition by providing an explanatorily account of the relation between speech and action using speech act theory as developed by J.L. Austin. The specific focus will be on speech acts advocating violence against the state, in the form of religious sermons preaching violent jihad or glorifying acts of terrorism. This philosophical account will have legal consequences for how we classify speech acts deemed to be dangerous, or to cause harm. It also suggests that because speech can constitute action or conduct in certain circumstances, sedition laws, in principle, might be defensible, but not in their current form.     

Relationship Between Two Types of Help Seeking Behavior in Domestic Violence Victims

A coordinated community response system to the help-seeking behaviors of domestic violence victims is critical to minimize the impact of violent events and to educate the public, so that safe and effective conflict management skills may replace violent responses. The focus for the present study is to identify and analyze victims’ choices of law enforcement assistance in stopping the violence and/or aid through the services of the regional family violence center. Some victims select legal channels of support; others rely exclusively on social service support, and others seek assistance from both sources. Characteristics of victims whose cases followed two types of help-seeking behavior patterns—legal support or social support–were determined through archived data from both the records of a regional family violence center (FVC) (n=258) and domestic violence incident reports of a police department serving a city of approximately 200,000 citizens (n=127). Findings indicate that African American victims more frequently sought protection through law enforcement sources than they did through family violence center services, and the reverse was true for Euro-Americans.     

Becoming-Animal,Becoming-Detainee: Encountering Human Rights Discourse in Guantanamo

The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say, of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places; secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove particularly useful here.     

Disability, disparate impact, and class actions

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act (ADA), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law. Moreover, the class action device has been virtually nonexistent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions in which individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA's potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts on challenging race- and sex-based discrimination. Future workplace policies should plan for "all jobs to include some physical activity" unrelated to job qualifications in order to "dissuade unhealthy people from coming to work at Wal-Mart."     

Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action

How do activist plaintiffs experience the process of human rights litigation under the Alien Tort Statute (ATS)? Answering this question is key to understanding the impact on transnational legal mobilization of Kiobel v. Royal Dutch Petroleum Co., in which the US Supreme Court sharply limited the scope of the ATS. Yet sociolegal scholars know remarkably little about the experiences of ATS litigants, before or after Kiobel. This article describes how activist litigants in a landmark ATS class action against former Philippine President Ferdinand Marcos faced a series of strategic dilemmas, and how disagreements over how to resolve those dilemmas played into divisions between activists and organizations on the Philippine left. The article develops an analytical framework focused on litigation dilemmas to explain how and why activists who pursue ATS litigation as an opportunity for legal mobilization may also encounter strategic dilemmas that contribute to dissension within a social movement.     

Police confirmation of use of force in Australia: ‘To be or not to be?’

Despite significant transgressions during encounters with Indigenous peoples and marginalised groups, all six state police organisations in Australia espouse the principle of minimum force and identify service and crime prevention as paramount in community interaction and intervention. This article offers some insight and perspective of police talk and thinking about the potential use or avoidance of force. The four Victoria Police focus groups, when confronted by the specific police use of force scenario, speak of the adrenalin rush and the need to achieve results, if reasonable and necessary by force, but also of the desire to control the situation and follow proper police procedures. Officers support ‘Safety First’ principles that advocate a cautionary and suspicious approach to the scenario combined with rational and methodical tactics rather than emotional responses. The reflective talk of individual officers about the hypothetical situation parallels actual behaviour when police collectively and visibly confront public disorder. Control and containment of the situation—whether the scenario or a major crowd disturbance—are paramount while time, in the form of acting slowly and adopting a low-key approach, can be seen as assets in achieving objectives. In both the scenario and police planning for collective action, a readiness to threaten force, rather than actually employ it, appears central to police thinking. Police justification of non-coercive tactics in certain situations can be revealing about their thinking processes in justifying force in other circumstances.

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美国加征关税的国内法与国际法规则运用冲突研究

在全球经济增长放缓的背景下,加征关税已经成为国家间贸易摩擦的重要形式。自2016年以来,美国不断增加对中国加征关税的额度,加征关税的法律依据也更加多样化。美国加征关税的法律依据主要分为针对不公平贸易行为、保障措施和国家安全例外三大类型。美国加征关税的国内法与国际法规则运用存在长期冲突,根源在于美国加征关税立法上确立的美国法优先原则,这将对今后国际贸易体系的改革和发展产生重大阻力。