Samuel Issacharoff of NYU has written Collective Action and Class Action, in THE CLASS ACTION EFFECT: FROM THE LEGISLATOR’S IMAGINATION TO TODAY’S USES AND PRACTICES, (Catherine Piché, ed., Éditions Yvon Blais, 2018 Forthcoming). Here is the abstract:
Over the past 25 years, class actions have emerged as a central feature of Canadian law. The conceptual heart of these class actions comes from the Ontario Law Reform Commission’s 1982 Report on Class Actions, particularly in common law Canada. Drawing on the experiences of the early-adopter provinces of Québec, Ontario and British Columbia, the Report set out the objectives of the modern class action: judicial economy, access to justice, and behavior modification.
The reasoning in the Ontario Report is insufficient to explain the need for class actions. The stated premises are all classic accounts of the lack of individual redress that require collective action. As such they form the classic argument for the state. Class actions are private sources of collective authority, even if formed pursuant to legal rules governing class certification. Put simply, if it is public goods we seek, why not use public authority to obtain them?
This chapter addresses the question of the relation of private aggregation in relation to public authority. The discussion is illuminated by looking to the U.S. experience in this light, an experience that looms large in the Canadian debate.
