“The Politics of Class Action Reform: Reflections on the American Experience," in The Australian Class Action: A 30 Year Perspective.

Abstract

The essays in this collection discuss the regulatory, political, historical, and economic perspectives, in addition to doctrinal analysis, with a view to critically assessing the federal class action regime. The collection grapples with issues such as access to justice, compensation, finality, due process and open justice.

 Professor Mullenix’s chapter, “The Politics of Class Action Reform: Reflections on the American Experience,” begins with consideration of the aspirational character of most legal systems that seek to a procedural regime that is neutral in content and outcomes and characterized by rules, regulations, and judicial interpretations that favor neither plaintiffs nor defendants involved in litigation. However, such lofty aspirations often fall short in rulemaking or execution. This article explores the often opaque political interests that spur investigation of class action practice or advocate for reform congruent with constituent interests. The non-transparent politics of class action reform is a largely ignored or unremarked dimension of procedural reform, but it is worth exploring to assess the ultimate efficacy of such efforts and the degree to which such activities succeed in shaping the law favorably to constituent interests.

 This article focuses on class action reform in the United States and centers on two relatively recent examples of attempts to influence class action amendment. These two examples provide interesting counterpoints of efforts by the plaintiff and defense bars – and their allies – to reform class action procedure to benefit their clients. The first example explores the machinations of plaintiff interests to revamp class action procedure favorably through the auspices of the American Law Institute. The second example illustrates the direct lobbying of defense interests to accomplish sweeping reform of American class action practice through federal legislation.

 Although class action reform efforts may be judged by its final procedural consequences, discussion of such results often fail to account for the efficacy of the underlying political efforts to favorably influence reform initiatives. Consequently, commentators frequently fall short in assessing the degree to which political actors succeeded or failed in their efforts to shape the law for their own benefit. Procedural reform is not conducted in a political vacuum, but rather in a cauldron of political self-seeking. As this article concludes, the case studies of two recent American law reform efforts suggest that institutional procedural reform efforts – at least in the United States -- work admirably to deflect the more extreme efforts of political actors who seek to revamp law to their own advantage. As will be seen, the plaintiffs failed in their attempts to remake class action procedure through the auspices of the American Law Institute, and defense interests failed in their attempt to eviscerate class action procedure by legislative enactment by the United States Congress.

Contributors to the volume include Justice Jayne Jagot, Justice Michael Lee, Justice Bernard Murphy, Dr. Peter Cashman, Dr. Ben Chen, Professor Andrew Higgins, Emerson Hynard, Aaron Moss, Professor Rachel Mulheron, Professor Linda Mullenix and Emeritus Professor Peta Spender. Thanks also to Justice Michelle Gordon AC for her Foreword.