Ação coletiva e acesso à Justiça: uma análise da Reforma do Judiciário à luz de estudos de caso (Class Action and Access to Justice: An Analysis of Brazilian Judicial Reform in the Light of Case Studies)

2020 ◽  
Author(s):  
Helena Campos Refosco
Keyword(s):  
Case Studies ◽  
Class Action ◽  
Access To Justice ◽  
Judicial Reform

Access to Justice and the Limits of Environmental Class Actions in Ontario

2020 ◽  
Vol 35 (3) ◽  
pp. 391-412
Author(s):  
Michael Molavi
Keyword(s):  
Case Studies ◽  
Integrated Assessment ◽  
Holistic Approach ◽  
Class Action ◽  
General Level ◽  
Access To Justice ◽  
Representative Case ◽  
Class Actions

AbstractFor over half a century, it has been axiomatic that environmental claims are particularly well suited for class actions. This paper examines this notion in the context of Ontario’s regime and finds that environmental class actions have been limited in the extent to which they have promoted access to justice. Starting with a brief overview of class action history in Canada and the economics of mass litigation at a general level, the paper then analyzes barriers specific to environmental claims. A series of representative case studies is then offered to substantiate the central contention on the limits of environmental class actions. In so doing, the paper takes a holistic approach, incorporating empirical, economic, political, and procedural factors and dynamics to provide an integrated assessment about the type of access to justice that is presently achieved and achievable for environmental claims in Ontario.

A MODERN JUDICIAL SYSTEM IN INDONESIA: LEGAL BREAKTHROUGH OF E-COURT AND E-LEGAL PROCEEDING

2020 ◽  
Vol 9 (2) ◽  
pp. 275
Author(s):  
Dedi Putra
Keyword(s):  
Supreme Court ◽  
Secondary Data ◽  
Primary Data ◽  
Access To Justice ◽  
Judicial Reform ◽  
Legal Service ◽  
Literature Study ◽  
Face To Face ◽  
Legal Proceedings ◽  
Digital Era

The implementation of court in Indonesia has not fulfilled as expected because any parties involving in court has a lack of capacity, consistency, and integrity to provide legal service seriously. Some people assume that court services are not still optimal. To settle the problems, the Supreme Court just has officially issued Regulation No. 1 of 2019 regarding the Administration of Cases and Legal Proceedings in Courts via Electronic Means on 8 August 2019. This regulation is believed as an appropriate solution to face those problems. To elaborate more, this study illustrates a judicial reform in Indonesia, e-court, and access to justice, the conception of e-court including the performance of e-court and its drawbacks and challenges in the digital era. The research method uses normative research by approaching legal review and literature study. The technique of primary data collection applies Supreme Court regulation while means of secondary data are collected from concept or theory as set out under bibliography. Judicial reform in Indonesia is indicated by issuing new regulation regarding e-Court and e-Litigation, the implementation e-Court itself has been attributed to 32 courts consisting of general religious, and state administrative courts. Through e-Court, access to justice more transparent and accessible. Besides, justice seekers have no worries regarding distance issues as of e-Court may allow them to fight in court without face to face. Parties have no doubt relating to the acceleration of court to settle any dispute in Indonesia.

Understanding the Economics of Class Actions

2021 ◽  
pp. 87-120
Author(s):  
Michael Molavi
Keyword(s):  
Rational Choice ◽  
Rational Choice Theory ◽  
Choice Theory ◽  
Class Action ◽  
Access To Justice ◽  
Class Actions

This chapter delves into one of the strongest arguments in favour of the access to justice potential of class actions, which can be found in the rational choice theory of orthodox economics. It explains the economic access to justice framework that is based on the recognition that the class action allows the pursuit of claims that would not be pursued by rational actors. It also talks about how class actions allow the pursuit of negative value claims or claims in which the value of the claim is outweighed by the costs of its pursuit. The chapter elaborates how allowing for ideological representatives to advance claims on behalf of harmed groups can contribute towards preventing injustices by deterring misconduct by potential wrongdoers. It explores important issues pertaining to the economics of class actions that impact the access to justice and are achieved through mass litigation.

scholarly journals Politics, Identity, and Class Certification on the U.S. Courts of Appeals

2020 ◽  
pp. 231
Author(s):  
Stephen Burbank ◽  
Sean Farhang
Keyword(s):  
African Americans ◽  
Strong Association ◽  
Product Liability ◽  
Racial Diversity ◽  
Class Action ◽  
Courts Of Appeals ◽  
Access To Justice ◽  
Procedural Law ◽  
Panel Effects ◽  
The Impact

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of two women (but not one), is associated with procertification outcomes. Our results show that, contrary to conventional wisdom in scholarship on diversity on the Courts of Appeals, the impact of diversity extends beyond conceptions of “women’s issues” or “minority issues.” The consequences of gender and racial diversity on the bench, through application and elaboration of certification law, radiate widely across the legal landscape, influencing implementation in such areas as consumer, securities, labor and employment, antitrust, insurance, product liability, environmental, and many other areas of law. In considering possible explanations for our findings on the procertification preferences of women and African Americans, we note that class action doctrine, as transsubstantive procedural law, traverses many policy areas. As strategic actors, it would be rational for judges to take into consideration how class-certification doctrine in a case that does not implicate issues on which they have distinctive preferences might affect certification in cases that do. Alternatively, or in addition, our results may be the first evidence that transsubstantive procedural law affecting access to justice is itself a policy domain in which women and African Americans have distinctive preferences. In either case, the results highlight the importance of exploring the effects of diversity on transsubstantive procedural law more generally. Our findings on gender panel effects in particular are novel in the literature on panel effects and the literature on gender and judging. Past work focusing on substantive antidiscrimination law found that one woman can influence the votes of men in the majority (mirroring what we find with respect to African Americans in class-certification decisions). These results allowed for optimism that the panel structure—which threatens to dilute the influence of underrepresented groups on the bench because they are infrequently in the panel majority—actually facilitates minority influence, whether through deliberation, cue taking, bargaining, or some other mechanism. Our gender results are quite different and normatively troubling. We observe that women have substantially more procertification preferences based on outcomes when they are in the majority. However, panels with one woman are not more likely to yield procertification outcomes. Panels with women in the majority occur at sharply lower rates than women’s percentage of judgeships, and thus certification doctrine underrepresents their preferences relative to their share of judgeships and overrepresents those of male judges.

scholarly journals Institute of Returning a Criminal Case to the Prosecutor in the System of Criminally-Remedial Means, Ensuring the Victim's Right to Protection from Crime and Access to Justice

2020 ◽  
Vol 14 (3) ◽  
pp. 512-526
Author(s):  
Tatyana Ryabinina
Keyword(s):  
Criminal Justice ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Access To Justice ◽  
Judicial Reform ◽  
Main Function ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Justice Process ◽  
Criminal Justice Process

The article deals with current and controversial issue in the criminal science, specifically the need for the Russian criminal justice process to have an institute to return a criminal case to the procurator at the stage of appointment and preparation of the court hearing. The author emphasizes that during the continuance of RSFSR Code of Criminal Procedure, a special emphasis was put on it as a guarantee of the delivery of justice and the rights of the participants in the proceedings, that put in place the arrangements necessary for an effective court trial. The goal of modern judicial reform is to establish an independent judiciary whose main function is the delivery of justice which can be implemented in criminal proceedings only in adversary criminal proceedings. Since the beginning of its implementation, attitudes towards the institution of returning a criminal case by a court to a procurator to correct lacunae, loopholes, contradictions, irregularities or flaws in pre-trial proceedings have changed dramatically. It is perceived as an attribute of the courts prosecutorial activities, which is inconsistent with its new role as an independent body to resolve legal disputes between a state and an individual awaiting for a founded and equitable decision from the court. Despite critical rhetoric towards the institution of returning the criminal case to the prosecutor, the author argues that it is necessary due to specific status of the first judicial phase in a staged system of Russian criminal justice process. This institute creates conditions for monitoring and verification activities of judges at this stage, and the corresponding authority of judges to determine the future course of criminal cases brought before the courts. However, the author concludes that the task of rectifying the shortcomings of the prosecution can be addressed at the preliminary hearing introduced by the Code of Criminal Procedure of the Russian Federation to resolve various contentious issues. When it is impossible to remove the obstacles that prevent the court from conducting a trial, the judge may, taking into account the views of the parties, decide to return the case to the prosecutor.

scholarly journals Reforming New Zealand's Class Action Procedures to Enhance Efficiency and Improve Access to Justice

2021 ◽  
Author(s):  
Danielle Thorne
Keyword(s):  
New Zealand ◽  
Class Action ◽  
Access To Justice ◽  
Efficient Procedure ◽  
Legislative Reform ◽  
Class Actions ◽  
Opt Out ◽  
Action Type ◽  
Enhance Efficiency ◽  
Action Procedure

<b>Abstract </b><p>This thesis addresses the question of whether New Zealand should reform its class action procedures in order to better meet the class action objectives of efficiency and access to justice. Class actions are a mechanism whereby groups of claimants with the same or similar claims can band together and bring proceedings. The ability for groups of similarly affected claimants to bring proceedings together provides certain advantages, including efficiency (both judicial efficiency and cost efficiency) and access to justice (where there may otherwise be none). The existence of a class action mechanism can also have a regulatory effect and serve to discourage illegal or inappropriate conduct. </p> <b>Currently, New Zealand does not have a dedicated class actions regime, and instead operates a class action type procedure under r 4.24 of the High Court Rules (known as a representative action). A review of the New Zealand position in relation to r 4.24 indicates that while there is a substantial body of law relating to the use of the representative action procedure, the objectives of the representative action procedure are not being met. The lack of legislative guidance in relation to the representative action has created significant difficulties for claimants in New Zealand. </b><p>Reforming the New Zealand class action procedure through legislative reform would provide a more efficient procedure and enhance access to justice. Wholesale legislative reform in the form of a dedicated class actions statute would be the best way forward for New Zealand. Legislative reform would need to address particular issues that have arisen in Australia and Ontario, including issues associated with the same interest requirement, opt-in and opt-out mechanisms, settlement requirements and limitation periods. The experience in Ontario and Australia illustrates the importance of ensuring the legislation is as clear as possible, and learning from the experience in those jurisdictions is vital if the objectives of the class action procedure are to be met. </p>

scholarly journals THE COLLECTIVE ACTIONS HELD HOSTAGE BY THE AUTHORITARISM

2018 ◽  
Vol 1 (1) ◽  
pp. 85-99
Author(s):  
Ada Pellegrini Grinover
Keyword(s):  
Process Model ◽  
Social Process ◽  
Class Action ◽  
Fundamental Rights ◽  
Executive Power ◽  
Access To Justice ◽  
Collective Actions ◽  
Political Configuration ◽  
The Government ◽  
Judicial Protection

The judicial protection of  collective interests represents, at the end of the millennium, one of the most impressive conquests of the Brazilian legal system. The transindividual interests which are particular to mass society are full of political relevance and, to that extent, are capable of transforming stratified judicial concepts. The recognition of these interests and the need to protect them have highlighted their political configuration in Brazil. In this way, the theory of public liberty forged a new “generation” of fundamental rights. In the same way, one can note that, at the constitutional level, the concepts of jurisdiction and litigation were renewed, while some fundamental guarantees were reformed. The most notable revolution, however, might have taken place in the procedural sphere, departing from an individual process model toward a social process model In Brazil, the Judiciary power has also taken advantage of class action lawsuits in terms of rationalization and work projection. The social objective of the judicial function was lost in view of the fragmentation and the pulverization of conflicts, always regarded as individual. There is a notable tendency to replace atomized decisions with a molecular treatment of litigation. Nevertheless, the Executive power has revealed itself to be inattentive to the reality of collective action and has tried to reduce its effectiveness, limiting access to courts, compressing the associative moment, and diminishing the role of the Judiciary. In this perspective, many years after the introduction of judicial protection for collective and diffuse interests in Brazil, the balance would have been positive, had the government not adopted an authoritarian line when applying legal treatment to the matter. It is possible to affirm that collective actions are a part of the current legal routine, despite the attacks which they suffer. The Judiciary power is significantly implanted in this context, it is conscious of its new role and of its renewed importance, and by way of its sentences, it was capable of occupying a position of leadership which points toward future challenges. The only note that rings false in this context is the attitude of the government with relation to the use of Provisional Measures to reverse such a situation, attacking collective actions and trying to diminish their efficiency in order to limit the access to Justice, to frustrate the associative moment and to make the Judiciary seem less important. The Legislative power, complacent or inattentive, has not been able to resist the attacks and to react to the attitudes of the government.

Sign in / Sign up

Export Citation Format

Share Document