The Optimal Law Enforcement with Mandatory Defendant Class Action


In this article we argue that the optimal law enforcement system is based on an ideal mechanism to prevent and redress harms in the mass information society. This goal is achieved by means of mandatory defendant class actions.

The idea of mass society has evolved in time since the beginning of the industrialization in the 18th century. At that time, the transformation of the means of production from artisanal craftwork to large scale machinery work, forged the concept of mass production. Nowadays, massive and expeditious relationships are created by sophisticated communications links, especially the Internet, furnishing services and goods, which induce lawful and unlawful behaviors.

Further, we defend that the best option to enforce the law within this scenario is the use of mandatory defendant class action because it confers individuals’ maximum well-being, as it takes into consideration the deterrence function of the law as well as its insurance objective. This model is based on a normative theory of individual rational choice. The result is that the ideal of distributive justice is better served, with the procedural law being considered as a tool to achieve the principles enacted in the substantive law.

In addition, we summarize an explanatory view of the defendant class actions, its origins and the requisites for its certification and maintenance under the current federal statute.

Also, we demonstrate that mandatory defendant class action permits dispersed individuals to exploit scale of economy and investment in the common defenses in the litigation, and, avoids the threat of nuisance value suits to be brought by a single plaintiff, or even, a plaintiffs’ class.

Finally, we argue that, besides the mandatory aggregation of the defendants, the optimal law enforcement system requires optimal incentive to the defendant class counsel. Therefore, we propose a specific model of defendant-favoring fee-shifting, where the fees are granted only to the defendant attorney, when the defendant prevails in the lawsuit, but no fee is award to the to the plaintiff’s lawyer, even if he wins the case.

This method of awarding attorney fees considers the fact that the lawyer is assuming the risk of the litigation. All strategies for the lawsuit are made on the lawyer’s assessment of expected gains and losses, so he will only represent the defendants, if the expected value of the litigation is positive to him. Consequently, the investment made by the lawyer equals the compensation he is expecting to obtain with the fees. The one-side fee-shifting compensates the lawyers’ legal services and the loan of such services.


Law and Economics | Law Enforcement and Corrections | Litigation

Date of this Version

June 2006