Chapter 10 provides an overview of the role and functions of private enforcement within regulatory regimes and the availability of redress. It draws attention to different ‘models of legal responsibility’ upon which regulatory regimes rely in allocating and distributing legal rights and duties between those who are subject to regulation and those whom regulation is intended to protect (‘regulatory beneficiaries’). This chapter is the most legally focused chapter in the volume, selectively highlighting several features of the institutional and enforcement context in which regulation occurs. Examples are private litigation, collective redress mechanisms, the role of courts as authoritative and final interpreters of the law and ‘alternative’ avenues for redress.

Chapter 7 proposes how the liability framework should be implemented. Harm liability can flow from a statutory standard or local tort law. This focus allows liability to complement, rather than replicate, public enforcement. The quantum of liability should depend on the harm incurred by the victim, rather than on the wrongfulness of the perpetrator’s conduct or the consequences that the perpetrator foresaw. Privacy liability is most effective as part of a mechanism of collective redress, such as class actions. A robust notion of loss and harm can address problems of insufficient compensation and uncertainties in class certification. Considering privacy problems at scale, we need a framework recognizing mass privacy effects for regulators and courts.

Chapter 7 argues that law’s framing of accountability results in an inevitably partial and fractured picture of wrongdoing for historical abuse. The chapter argues that despite a focus on accountability for historical child sexual abuse, non-sexual historical abuses, especially those authorised or ignored by law, struggle to achieve modern-day legal accountability against individuals, institutions, or states. Law’s claim to sovereign authority is unable to comprehensively address historical-structural abuses, which may challenge the legitimacy of the legal order created by states and churches. The chapter considers these challenges in the context of accountability mechanisms, including criminal prosecutions, civil litigation, and the use of canon law.

Over the last ten years, implicit consent has become one of the major points of contention in the debate about the propriety of class, mass and collective arbitration. The notion of implicit consent is critical to the development of large-scale arbitral proceedings because it allows multiple disputes to be heard at a single time, in a single forum, even if the relevant arbitration agreements are silent regarding the possibility of joint action by the claimants. The issue arises in the context of both international commercial arbitration and investment arbitration.

The divisive nature of the debate suggests that the controversy about implicit consent will continue so long as the discussion continues to be framed in its present terms. However, it may be possible to advance the conversation by expanding the nature of the analysis. Rather than focusing on implicit consent as a matter of treaty or contract interpretation, it might be beneficial to consider implicit consent from a systemic rather than individual perspective. This chapter therefore applies a dispute system design (DSD) analysis to the question of implicit consent. In particular, this discussion considers whether and to what extent the concept of ""regulatory litigation"" (defined herein as including both judicial and arbitral procedures) can be used to justify use of implicit consent as a means of addressing unanticipated risk, including unanticipated procedural risk.

The discussion proceeds as follows. First, Section II considers how regulatory litigation operates and why an analytical framework based on unanticipated risk might be necessary or useful in the context of large-scale arbitration. Section III then describes what constitutes unanticipated risk in disputes involving class, mass and collective injuries and how those issues affect dispute system design in international commercial and investment settings. Section IV addresses some of the criticisms of implicit consent and regulatory litigation by considering the nature of class, mass and collective claims, while Section V considers how implicit consent and regulatory litigation operate to overcome some of the special problems associated with transnational regulatory disputes. Section VI concludes the chapter with a number of forward-looking observations.

MDLs rely, for legitimacy, on the notion that the individual litigant calls the shots. That fact justifies a system that affords MDL litigants few, if any, safeguards, even while furnishing class members in class actions elaborate procedural protections. In this Chapter, we zero in on litigant autonomy in MDLs. We explain why autonomy matters, dissect its components, and evaluate how much autonomy MDL litigants seem to have in practice. We then turn to a necessary component of that autonomy: information. We review data from a recent survey indicating litigants felt confused and uninformed regarding their suits. In light of that evidence, we assess what transferee courts are doing to keep litigants up-to-date and well informed. We then furnish the results of our own empirical analysis of court-run MDL websites, which are often extolled, including by judges, as a key venue for client-court communication. Unfortunately, our analysis reveals deep and pervasive deficits with respect to usability and relevance. If this is where case-related communication is supposed to be happening, then litigant confusion is unsurprising. We close with recommendations for courts seeking to harness simple technology to promote better communication. Improved MDL websites aren’t a panacea. But they might promote the autonomy interests of litigants—and light a path for future reform.

Legal means of shareholder engagement in Australia vary considerably, ranging from reliance on shareholder rights conferred under the Corporations Act 2001 (Cth) to reliance on class actions seeking the collective enforcement of legal rights arising from corporate conduct. This chapter offers an introduction to Australia’s corporate governance framework in the context of corporate decision making and the exercise of shareholders voting rights. The balance of power between shareholders and the board of directors, and its legal impact on shareholder engagement, is highlighted. Insights are provided into the legal means of shareholder engagement in Australia and the manner in which votes are exercised. There is growing evidence of shareholder apathy and the dominance of institutional investors and proxy advisors. The chapter charts the recent trend towards active shareholder engagement on ESG and human rights issues at Annual General Meetings, notwithstanding the limited opportunities to propose advisory or non-binding resolutions at meetings.

Justiciability law deals with the who, when, and where of litigation. The Court addressed the “who” question when it raised questions about the expansive use of class actions in a case seeking to block sales of homes to African American buyers. Other cases dealt with the application of rules waiving any requirement that civil liberties cases in the federal courts have a minimum financial amount at stake and the propriety of federal courts staying their hands in civil rights cases to see what the state courts would do about state law questions bound up with the federal ones. The Court also elaborated on the defition of a “federal question” for purposes of federal jurisdiction. Overall the cases show how substantially Frankfurter’s vision about the limited scope of national judicial power had been accepted by the Court.

This chapter continues the analysis begun in Chapter 2 regarding the theory of civil dispute resolution (CDR). Chapter 2 focused on the many conflicts which must be balanced by governments, courts, ADR practitioners and parties engaging with CDR, and how those conflicts define and explain CDR. This chapter will consider two key principles: access to justice and open justice, which underlie our dispute resolution system and how these principles play out through policy, legal reform and practice. These principles interact in sometimes complex ways with the balancing acts discussed in Chapter 2. The ability of every member of society to access justice and the openness of the justice system are two of the most important requirements of the civil justice system but they are simultaneously complex and impossible to achieve.

By examining some of the more critical and emerging issues facing this industry – defining employment, litigating claims, aggregating cases, and preventing harassment – this book takes on some of the more high-profile instances where the law has not kept pace in this growing area of virtual work.

Using illustrations from the Yasmin/Yaz and asbestos proceedings, Chapter 1 introduces multidistrict litigation and its inhabitants, situating individual and class-action litigation in the rearview mirror. As class certification wanes, so too does formal judicial oversight aimed at thwarting self-dealing lawyers. This is not, however, a revival of individual litigation where a plaintiff can effectively monitor her own suit. To the contrary, when a plaintiff retains an attorney, she will typically be one of the many clients that her lawyer “warehouses.” Nevertheless, judges embrace a push for settlements that exists across all civil cases, but can result in ethically dubious deals in the multidistrict litigation context. When private settlements occur on the back end and tort-reform measures like punitive damage caps deter lawyers from suing on the front end, litigation’s ability to unearth information on corporate wrongdoing and generate public goods like precedent, transparency, and equal treatment is in peril.