Judges and Mass Litigation: A (Behavioural) Law & Economics Perspective

‘Is the mission that we have assigned to judges too heavy? While the mission is certainly difficult, one must ensure the knowledge and the independence of those who perform it. We are however led by necessity to accord judges this responsibility’. With these words, written as early as 1911, DEMOGUE depicted the rise of judges and their increasing roles in modern societies. For decades, judicial duties have extended far beyond the scope of traditional adjudication, judges being progressively called upon to occupy the role of social engineers. Meanwhile, contexts in which judges evolve have transformed. A few decades ago, CAPELLETTI predicted that the rise of ‘big businesses’ as by-products of ‘a massification of societies’ characterized by ever-increasing production and consumption and changes in social relations would, sooner or later, require the implementation of ‘big judiciaries’. Mass damage caused by corporate misbehaviour (e.g. anticompetitive practices, misleading market information), defective products, harmful pharmaceuticals, accidents or environmental disasters nowadays tend to multiply and create new challenges not only for legal actors but also for society at large. In spring 2011, the replies received by the European Commission to its public consultation on collective redress indicated European stakeholders’ strong interest in seeing judiciaries play ‘prominent’ and ‘leading’ roles in the supervision and monitoring of procedures which enable groups of claimants to seek together compensation for damage caused by mass events. In its 2013 Recommendations, the EU Commission further highlighted that ‘a key role should be given to courts in protecting the rights and interests of all the parties involved in a collective redress actions as well as in managing the collective redress actions effectively’. Judges are thus expected to be neutral and robust agents while assuming heavy responsibilities under a considerable burden.