Foreword: Debates Over Group Litigation in Comparative Perspective: What Can We Learn From Each Other

Modern societies all face in varying degrees the problem of possible liability for actual injuries, and prevention of threatened ones, to large numbers of people, with the injuries resulting from a single event or product or other common cause. 1 The sources of injury or threat can vary greatly-a tragedy such as a hotel fire or airplane crash; widespread distribution and use of a drug or other product such as asbestos, tobacco, or Fen-phen; claimed violations of civil or human rights; environmental pollution; and business practices such as alleged price-fixing, misleading statements affecting values of publicly held securities, insurance overcharges, and violation of consumer protection laws.However parallel the problems, the responses of different legal systems have varied widely among nations, with varying emphases on class actions, group litigation by associations or unions, regulatory enforcement, social compensation schemes, and other approaches.In the United States the class action has for the last third of a century been the most prominent but by no means exclusive mode-and has been a focus of much controversy.2 Only a few other nations have * Elvin R. Latty Professor of Law, Duke University School of Law. 1. Six decades ago, two American legal scholars presciently observed: Modern society seems increasingly to expose men to . . . group injuries for which individually they are in a poor position to seek legal redress, either because they do not know enough or because such redress is disproportionately expensive.If each is left to assert his rights alone if and when he can, there will at best be a random and fragmentary enforcement, if there is any at all.This result is not only unfortunate in the particular case, but it will operate seriously to impair the deterrent effect of the sanctions which underlie much contemporary law.The problem of fashioning an effective and inclusive group remedy is thus a major one.Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. CHI.L. REV.684, 686 (1941).2. For an extensive, recent study of class action issues and illustrative cases in the United States, see DEBORAH R. HENSLER ET AL., CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN (2000).

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