Justice and Efficiency in Mega-Litigation

Description

Justice and Efficiency in Mega-Litigation explores the phenomenon of extremely long-running, resource-intensive civil litigation known as ‘mega-litigation’. Such litigation challenges the courts to reconcile the objectives of justice and efficiency – for the parties to the case and for the community. Drawing on interviews with judges of the courts of England and Wales, and of Australia, this book shows how judges have responded to these challenges. It situates mega-litigation within broader developments in civil procedure and case management, as well as theoretical debates about the role of courts and the purpose of civil procedure. The book highlights the importance of intensive, creative and flexible case management; focus on the issues in dispute; and, ultimately, each judge’s expert intuition. Acknowledgements Contents PART I: THE PROBLEM 1. Introduction I. Aim and Scope of this Book II. Methodology III. Structure of this Book 2. Justice and Efficiency as Aims of Civil Procedure I. Justice II. Efficiency III. Relationship between Party and Public Perspectives on Justice and Efficiency IV. Conclusion 3. What is Mega-Litigation? I. Towards a Definition of Mega-Litigation II. Causes of Mega-Litigation III. Qualitatively Different from Ordinary Litigation? IV. Conclusion: Mega-Litigation Described 4. Mega-Litigation in the Justice System I. The Burden of Mega-Litigation II. The Benefits of Mega-Litigation III. Is there Tension between Justice and Efficiency in Mega-Litigation? IV. Conclusion PART II: APPROACHES TO THE PROBLEM 5. Justice and Efficiency in Civil Procedure: Theoretical Perspectives I. Zuckerman: Three Dimensions of Justice II. Posner: Economic Analysis of Civil Procedure III. Dworkin: A Rights-Based Approach IV. Summers: Process Values V. Conclusion 6. A Brief History of Justice and Efficiency in Civil Procedure I. The Judicature Acts II. Post-Judicature Acts: Complete Justice III. The Rise of Case Management IV. Conclusion 7. The Current Position in England I. Civil Procedure in General II. Complex Litigation III. Conclusion 8. The Current Position in Australia I. The Australian Court System II. Case Management in Australia III. Participants' Views IV. Conclusion PART III: JUSTICE AND EFFICIENCY IN MEGA-LITIGATION 9. The Mega-Litigation Judge I. Characteristics of the Mega-Litigation Judge II. Personality and Experience III. Conclusion 10. Procedural Techniques in Mega-Litigation I. Continuity of Case Management II. Defining the Issues III. Discovery IV. Separate Issues V. Sharing the Judicial Task VI. Structuring the Trial VII. Presenting Evidence VIII. Controlling Submissions IX. Using Technology X. Managing Relationships XI. Conclusion 11. Justice and Efficiency in Mega-Litigation I. Innovation II. Focus on the Real Issues III. Resolving the Tension: Expert Intuition IV. In Defence of Expert Intuition V. Conclusion 12. Conclusions I. England and Australia: Similar but Different II. Practical Consequences: Allocation, Education and Recruitment III. Procedural Reform? IV. Conclusion Appendix A. Qualitative Research Methodology I. Stages of the Research II. Selection of Interview Participants III. Recruitment of Interview Participants IV. Development of Interview Topics V. Interview Procedure VI. Data Analysis VII. Participant Review and Anonymity VIII. Limitations of Study Appendix B. Information Provided to Interview Participants Prior to Interviews Outline of Topics for Participants Theoretical Perspectives on Procedural Law Appendix C. List of Interview Participants Index