Homo Legislativus: Missing Link in the Evolution of 'Behaviour Modification'?
Bibliographic record
Abstract
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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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.003 | 0.004 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.000 |
| Science and technology studies | 0.003 | 0.021 |
| Scholarly communication | 0.002 | 0.002 |
| Open science | 0.001 | 0.002 |
| Research integrity | 0.002 | 0.002 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".