Homo Legislativus: Missing Link in the Evolution of 'Behaviour Modification'?

It has become de rigeur to assert that class actions have three advantages: judicial economy, access to justice and behavior modification. But the third of these has received scant attention, and such as it has received has failed to adequately account for Homo legislativus. This species of defendant, closely related to Homo economicus, responds to class action threats, not by modifying the allegedly wrongful behavior, but by seeking legislative relief for class action pain. To better understand what is going on, we need a framework or schema that better takes account of defendants' legislative-seeking behavior in the context of class actions and other large-scale claims.Drawing chiefly from Canadian claims experience, the article sets out such a schema based on pre- and post-dispute phases. A prominent example of pre-dispute behavior is the enactment of 'private legislation' to preclude class claims through contractual clauses that mandate arbitration and bar class actions or class arbitration. Alternatively, defendants may seek to forestall, eliminate or cap liability by lobbying for legislation. When sought to preclude an action, the behavior may be called proactive or preemptive; when sought to reverse a judicial decision, the behavior may be called reactive or retaliatory. Examples of both behaviors are provided. Another type of behavioral response is to seek to legalize or to regulate activities that were previously illegal or unlawful. The Canadian payday loan industry's success in using this strategy to fight off 'criminal interest' class actions is a remarkable example of Homo legislativus at work. In post-dispute phases, defendants may be able to frustrate the ability of a class to collect a remedy or counsel to collect a fee; alternatively, defendants may simply be able to absorb or spread the costs of the action and the remedy across other consumers, as one gas distribution utility did by seeking a rate increase to pay for the legal and settlement costs associated with a class action.Responses to Homo legislativus include such things as consumer protection statutes to limit the use of pre-dispute arbitration clauses (proving that Homo legislativus is alive and well in plaintiffs as well as defendants) and close judicial scrutiny of class action settlements to ensure that wrongful behavior is corrected rather than rewarded. Such efforts go some way to providing a countervailing influence to defendant behavior, but more work is needed if society is to realize the behavior modification goal that has been suggested to be an advantage of class actions.

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