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The Conservative Case for Class Actions$
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Brian T. Fitzpatrick

Print publication date: 2019

Print ISBN-13: 9780226659336

Published to Chicago Scholarship Online: May 2020

DOI: 10.7208/chicago/9780226659473.001.0001

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Why Private Enforcement Needs Class Actions

Why Private Enforcement Needs Class Actions

(p.58) Chapter Five Why Private Enforcement Needs Class Actions
The Conservative Case for Class Actions

Brian T. Fitzpatrick

University of Chicago Press

This chapter argues that private enforcement of the law needs class action lawsuits in order to be effective. For small injuries—known as “negative expected value claims”—the only possible private lawsuit is the class action. Although individual arbitration is sometimes touted as an alternative to class action lawsuits, empirical studies show that arbitration is far inferior. The class action also harnesses most if not all of the virtues of privatization explored in chapter 3: smaller government, more self help, profit motivation, better resources, and less capture by special interests. This chapter also explains why several conservative and libertarian arguments against the private attorney general unique to class action lawsuits fail. More serious arguments are treated in later chapters.

Keywords:   conservative, libertarian, private attorney general, privatization, lawyers, capture, negative expected value, class action, arbitration, empirical

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