Is Group Litigation Legitimate?

The received view on the purpose of group litigation is that the latter should aim at a comparatively more efficient fit between substantive laws and rights, and the outcomes of potential litigation, than the one which individual litigation can achieve: when we design group litigation, we limit party autonomy, alter standing rules, or rules of preclusion, in order to increase the prospects (and correspondingly reduce the costs) of effective legal protection for otherwise vulnerable interests and rights. This chapter tests the potentialities of the three political principles of equal access to justice in meeting a specific challenge to the legitimacy of group litigation as such. Group litigation is a threat to democratic legitimacy, according to such challenge, because it imposes illegitimate limits to one’s right to a day in court, the protection of which constitutes a foundational component of public respect for individual autonomy and dignity. The three political principles of equal access to justice, I argue, provide powerful justifications for the introduction of group litigation in any given jurisdiction and jointly explain reasonable concerns with democratic legitimacy in adjudicative procedures.