It’s (not all) Personal: Civil Litigation and the Values of Rights of Action

Existing approaches to civil litigation, both regarding its theoretical underpinnings and its practical instantiations, take diametrically opposing perspectives on the value of personal rights of action. Some view them as inviolable, and thus vehemently oppose any mandatory arbitration clauses and treat class actions as presumptively dubious. Others have no principled objection to neither, since they perceive personal rights of action as sheer technologies, which are painlessly dispensable if the substantive values underlying the claim at hand can be realized more effectively through a more efficient mechanism.

In this Article, we reject both these ‘all or nothing’ approaches and offer an alternative. Our thesis is that personal rights of action are sometimes intrinsically valuable, and (many) other times, they are not. Personal rights of action are intrinsically valuable where either justice or democracy so prescribes. This Article unpacks these justifications, explaining why justice points to cases of deliberate or relational wrongdoing while democracy focuses on cases of significant precedential potential. These refinements, in turn, help to delineate the proper scope of class action, distinguish between legitimate and illegitimate mandatory arbitration clauses, and envisage further directions for reform.