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Hodges, Christopher --- "Objectives, Mechanisms and Policy Choices in Collective Enforcement and Redress" [2011] ELECD 626; in Steele, Jenny; van Boom, H. Willem (eds), "Mass Justice" (Edward Elgar Publishing, 2011)

Book Title: Mass Justice

Editor(s): Steele, Jenny; van Boom, H. Willem

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849805063

Section: Chapter 5

Section Title: Objectives, Mechanisms and Policy Choices in Collective Enforcement and Redress

Author(s): Hodges, Christopher

Number of pages: 17

Extract:

5. Objectives, mechanisms and policy
choices in collective enforcement
and redress
Christopher Hodges

1. INTRODUCTION

This chapter seeks to frame the European debate on collective redress
by distinguishing between the key objectives, namely behaviour control
and compensation, and between the key mechanisms that are available,
namely public and private enforcement. It is argued that these distinctions
are of fundamental importance for two reasons: firstly, in understand-
ing the differences and similarities between American class actions and
European collective redress models, and secondly, in identifying the policy
choices that are currently being debated in Europe.
Much of the European debate about collective redress has made three
central but erroneous assumptions. These are, firstly, that the architecture
of the legal systems in the United States of America and in Europe, and
hence their primary enforcement goals, are the same; secondly, that the
class action as used in the United States, which is easily the most familiar
model for collective redress,1 can be transplanted into European legal
systems to perform the same function in Europe as it does in the United
States; and thirdly, that a class action procedure, or a modification of it,
is the only appropriate procedure for delivering collective redress. This
chapter will indicate why those assumptions are erroneous by starting at
the fundamental level of identifying the basic policy objectives in collec-
tive redress, then proceeding to analyse the different architectural models
of the United States and European legal systems, and finally suggesting
a framework within which the ...