by Wayne V. McIntosh and Cynthia L. Cates. Vancouver (Canada): University of British Columbia Press, 2009. 296 pp. Cloth $85.00. ISBN: 9780774815963. Paper. (Price Not Available) ISBN: 9780774815970.
This review was commissioned by Roy Flemming, LPBR Editorial Board member.
Reviewed by Stephen Daniels, Research Professor, American Bar Foundation. Email: sdaniels [at] abfn.org.
Wayne McIntosh and Cynthia Cates have produced an important, insightful, and provocative work in area too often ignored by political scientists – the civil justice system. Their specific topic is multi-party or collective litigation, meaning class actions or mass tort litigation. They focus on three areas of multi-party litigation: tobacco, guns, and food. While each of these areas has received substantial attention in the media and in the policy debates over the civil justice system, McIntosh and Cates look beyond the usual debates in order to “consider the effectiveness of collective litigation as a tool for political change, particularly for regulatory change” (p.3). These issue areas serve as vehicles to explore this broader concern. Ultimately, McIntosh and Cates assert that such litigation is not likely to be all that effective. While not quite willing to explicitly go as far as Gerald Rosenberg’s conclusion that litigation as a strategy for bringing about political and social change is a “hollow hope” (Rosenberg 1991), the authors offer little in the way of optimism. In their conclusion they note that in each of the three issue areas examined, “the politically and legally more experienced and resourced party, if not always a clear winner, was always at least able to cut its losses to the disadvantage of the would-be regulators. In some instances, the sheer mismatch in experience and resources was overwhelming” (p.193).
To reach this conclusion, McIntosh and Cates draw from an extensive bibliography of scholarly and journalistic materials and from over 400 cases. As if to foreshadow what their findings reveal, they structure their discussion around Marc Galanter’s (1974) classic article “Why the Have’s Come Out Ahead: Speculations on the Limits of Legal Change” and Galanter’s observation that the “have’s” – those with substantial resources – use litigation on a regular basis and generally prevail in the long run despite occasional setbacks. These “repeat players,” as Galanter calls them, prevail because their superior resources and experience give them access to better legal talent and the ability to play long term strategies. When they fail in the litigation arena under a given set of rules, they will move to change those rules to their advantage or move the battle to other arenas that allow repeat players to blunt, if not reverse, the effects of occasional litigation defeats. Accordingly, McIntosh and Cates continually emphasize the importance of rules and rule changes that govern access [*599] to the civil justice system for multi-party cases.
Multi-party litigation is one possible strategy for trying to counter the advantages of “have’s” or “repeat players” and to bring change about. McIntosh and Cates’ analysis is essentially a test of this possibility. Each of their substantive chapters – on tobacco, gun, and food litigation, respectively – incorporates a discussion of the politics of the litigation in a given area. This includes not only the main legal issues and the major cases, but the players and political coalitions on each side in those issue areas. The conclusion to each chapter also has a section on “litigation as regulation” (the political purpose of multi-party litigation) and a section “winners and losers” (the evaluation of multi-party litigation). Finally, each of these chapters has an appendix that presents an annotated litigation timeline of key cases – something essential for readers not familiar with the litigation battles in these three areas. Of the three issue areas, tobacco and guns reflect more clearly the idea that the “have’s” ultimately come out ahead. The outcome for collective litigation around food-related issues, McIntosh and Cates argue, is mixed; but they are not prepared to say that the “have-not’s” – those bringing collective litigation – have won.
To set the stage for these three substantive chapters, McIntosh and Cates provide a one chapter overview of the history and theory of collective litigation in England and the United States. The history is actually a long one and they emphasize a crucial tension that has always plagued multi-party litigation. In their words, “there is a significant tension between safeguarding individual rights and achieving individual justice, on the one hand, and promoting collective justice, on the other” (p.41). The potential conflict is important because the way in which courts or legislatures deal with it – emphasizing the traditional individual nature of litigation or being open to the possibilities of collective litigation – will determine how multi-party litigation is used. The way this tension has been addressed has varied over time within the U.S. as well as from one nation to another within the common law world. The use of multi-party litigation has varied accordingly. The authors also provide a chapter on the contemporary landscape of multi-party litigation in the U.S. which gives the reader a sense of the range of issues, the players, and the purposes involved in multi-party litigation. In both of these chapters, McIntosh and Cates want to show the reader that multi-party litigation is about group struggle and that “in short, [it] is politics by another name” (p.71). To drive home the point, they even go so far as to characterize multi-party litigation as being “nakedly political” (p.151).
While these two chapters form one bookend for the three substantive chapters, the other bookend is a chapter that expands the discussion beyond the U.S. to three other common law legal systems: the United Kingdom, Canada, and Australia. For the reader whose usual focus is the American context, this chapter may be the most interesting. McIntosh and Cates argue that “the worldwide trend seems to be in the direction of accommodating, even in small ways, group litigation” (p.160). As to why, they point to a series of more [*600] fundamental movements: toward more independent policy-making authority for high courts; the increasing sense among judges on high courts in different countries that they see themselves as members of a shared community; and globalization. Still, there are differences in the degree of acceptance of multi-party litigation in different countries and none has gone as far as the U.S. Of the three countries examined, Canada may have come closest to accepting group litigation, with the U.K. and Australia exhibiting more of a preference for legislative rather than judicial solutions to the kinds of regulatory issues at the heart of multi-party litigation. McIntosh and Cates return to this trend in the last section of their concluding chapter in their discussion of areas for future research, and they argue that the trend is likely to continue. Whether the “have’s” would continue to come out ahead remains unclear.
MULTI-PARTY LITIGATION is tightly-organized, well-written, and thoroughly researched. Any political scientist interested in law and politics should have it on their reading list. It makes an important contribution to our understanding of the political uses of litigation and it is sure to enliven the debate over litigation as a tool for change (see McCann, 1992).
Galanter, Marc, 1974. “Why the Have’s Come Out Ahead: Speculations on the Limits of Legal Change.” LAW & SOCIETY REVIEW 9 (1): 95-160.
McCann, Michael, 1992. “Reform Litigation on Trial.” LAW & SOCIAL INQUIRY 17 (4): 715-743.
Rosenberg, Gerald, 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
© Copyright 2009 by the author, Stephen Daniels.