Collective Legal Mobilisation: Exploring Class Actions in Sweden and Canada

ABSTRACT

Although a wide range of activities constitute legal mobilisation, a long-standing area of neglect in this research tradition has concerned the role of collective or aggregative mechanisms such as class actions, particularly outside the American context. This essay situates class actions in the legal mobilisation research tradition, drawing on insights from the two comparator regimes of Canada and Sweden, and offers a critical exploratory account of their role in facilitating collective legal mobilisation. The first section establishes the theoretical foundations for incorporating class actions into the tradition, exploring the main approaches to conceptualising legal mobilisation and identifying ways in which this incorporation expands and contributes to conventional approaches. The second section undertakes a comparative analysis with a focus on key design points and legal opportunity structures that promote or hinder collective legal mobilisation. Finally, the third section explores new and future trajectories of research, with a focus on benefits of comparative sociology of law and a critical orientation towards the promises and perils of collective legal mobilisation.

KEYWORDS:

• Collective legal mobilisation
• class action
• Sweden
• Canada
• legal contestation

Introduction

In a seminal review of legal mobilisation research, Michael McCann identifies class actions as one of the ‘ …  promising new areas of study’ for scholars in the tradition, noting that ‘ …  social scientists have devoted very little study to class action litigation and other types of “complex” litigation’¹ and ‘[g]iven the highly political character and huge consequences of such litigation, it seems like a ripe area for research by social scientists interested in legal mobilisation’.² That was nearly 15 years ago. In the ensuing years, McCann’s call has largely fallen on deaf ears. Legal mobilisation research continues to neglect the transformational role of class actions; likewise, class action research remains almost entirely in the realm of civil procedure. This essay is a direct response to McCann’s imperative. It thus has both an ambitious and a rather modest objective: to situate class actions in the legal mobilisation tradition, drawing on two comparator regimes of Sweden and Canada.

The first section establishes the theoretical foundations for incorporating class actions into this research tradition, exploring main approaches to conceptualising legal mobilisation and identifying the ways in which this incorporation problematises and contributes to standard analytical models and frameworks. The second section takes a comparative look at Canada, a mature second-generation regime, and Sweden, a mature third-generation regime, with a focus on key litigation dynamics and design points that promote or hinder collective legal mobilisation. This section draws on Indigenous legal mobilisation campaigns in the context of the Residential Schools system to uncover the role class actions can play in facilitating justice and achieving individual, group, and sociopolitical objectives, as well as their limitations in so doing. Finally, the third section explores new and future trajectories of research, with a focus on benefits of comparative sociology of law and a critical orientation towards the promises and perils of collective legal mobilisation.

Situating Class Actions in the Legal Mobilisation Tradition

As a research tradition, legal mobilisation has formed a cornerstone of the study of law and society. It arose in large part out of the legal contestations that animated American political life in the 1960s and social movement activity during that heyday of liberal legalism. Those contestations resulted in a plethora of socio-legal studies tackling various dynamics involved in recourse to law – often but not exclusively formal legal pathways – to achieve substantive justice or broader social change objectives, with a focus on activities of vulnerable or marginalised people across familiar social locations associated with race, gender, class, sexuality, and ability.³ Many such studies corresponded to social phenomena that captured popular imaginations, such as the American Civil Rights Movement, and scholarly interest in litigation as a tool of social movements and broader rights advocacy thereafter permeated social science analysis of law – to the point that core tenets of the legal mobilisation research tradition have been incorporated into the mainstream, and contemporary studies typically deploy its analytical tools and concepts alongside other frameworks.⁴ Interestingly, despite the popularity of legal mobilisation research – whether explicitly identified or incorporated as discrete facets of broader projects – there has been relatively little conceptualisation of legal mobilisation as such. This section offers a concise and critical account of the concept, its trajectory, the various ways it has been understood and deployed in extant research (disjunctions and foci on nature, target, actors, and objectives), and the limitations of conventional approaches that have largely neglected the role of class actions.⁵

Conceptualising legal mobilisation

Anybody familiar with legal mobilisation studies will immediately recognise the classic 1983 definition offered by Zemans that law is ‘ …  mobilized when a desire or a want is translated into a demand as an assertion of rights’.⁶ This definition emphasises the translation process involved in rearticulating an objective from everyday parlance into a formal legal demand, with the explicit understanding that it involves asserting rights. This reveals certain assumptions – not only about what legal mobilisation is, but also about what it is not. An earlier, perhaps lesser-known conceptualisation by Lempert, for example, in 1976, held that legal mobilisation is simply ‘ …  the process by which legal norms are invoked to regulate behavior’.⁷ This displaces the formal legal dimension in favour of a broader sociological understanding that includes, but is not limited to, litigation and the assertion of rights. By expanding its scope, Lempert’s conceptualisation speaks to the myriad ways in which legal norms govern social life. This normative perspective is a minor thread in the tradition – one which can notably be traced through the work of Cover in American scholarship,⁸ as well as the sociology of law tradition arising out the work of Ehrlich.⁹ McCann’s recent study of Filipino American labour activists in a racial capitalist order is a rare example of the applicability of Cover’s understanding to how constructions of legal meanings and narratives originating in the nomos of a community inform and shape legal contestations.¹⁰ It is beyond the scope of this essay to expand on this minor thread,¹¹ but it is discursively salient to recognise that the conventional formalistic conceptualisation is not the only game in town.

Be that as it may, the conventional approach situates legal mobilisation as a type of activity that involves formal state institutions in line with the rights advocacy of classic liberal legalism. The acceptance of this conception is likely due to the fact that legal mobilisation studies cross multiple disciplines and subdisciplines (chiefly sociology, political science, and socio-legal studies) with a major focus area being the study of social movements – in which resort to legal strategies is articulated as part of a movement’s repertoire of contention.¹² A governing assumption herein is that an overarching social objective is at play. This is often explicitly expressed even where recourse to state institutions is de-emphasised; for instance, Lemaitre and Sandvik define the concept as ‘ …  a means of seeking social change through legal norms, discourse, or symbols’.¹³ This definition adopts an expansive scope (that could include street demonstrations and protests, for example) even as it demands that the contestation must incorporate an ideation towards social change – in other words, actions that arise out of discrete, self-regarding, particularistic, or otherwise private interests are excluded from its purview. Yet the concept is not reducible to its relevance for any given social movement or to its potentiality in a movement’s repertoire of contention.

For the most part, moreover, studies in the tradition have adopted a narrower understanding that focuses on the invocation of formal law in state institutions. In practice, this means a focus on litigation. In what has become another well-cited understanding, Epp considers legal mobilisation as ‘ …  the process by which individuals make claims about their legal rights and pursue lawsuits to defend or develop those rights’.¹⁴ In contrast to conceptualisations that require social change as an explicit objective but uphold an expansive scope that moves beyond the use of law in formal state institutions, this (individualistic) iteration excludes the broader social objective but narrows the focus onto lawsuits.

It is not necessary to offer a litany of competing definitions of the concept at this juncture; rather, it ought to be clear that there are tensions in the way it has been conceptualised running along several axes: type of law being deployed (formal/informal); the venue in which the contestation takes place (formal state institutions/broader social, cultural, and juridical field); the objective sought by users of law (social change/private interests); and the target of action (state/private actors), which is often implied in certain definitions requiring human rights advocacy (generally applicable to public authorities).

In an illuminative recent contribution, Lehoucq and Taylor offer the following conceptualisation that is borne out by the main tendencies in the tradition: ‘ …  the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism.’¹⁵ According to Lehoucq and Taylor, although a wide array of activities have come to be grouped under the umbrella of legal mobilisation, including protests, demonstrations, letter-writing campaigns, and boycotts, the main activity is, unsurprisingly, litigation. Reviewing a wide range of legal mobilisation studies, the authors found that even where scholars in the tradition adopt broad conceptualisations, they nevertheless tend to focus on litigation and court-centric activities.¹⁶ There was also no consensus on the target of legal mobilisation campaigns, whether public or private.¹⁷ Finally, on the nature of claims, they observed that most studies involve claims with explicitly political dimensions.¹⁸ This leads to the ‘explicit, self-conscious’ qualifier in their conceptualisation; and, by extension, excludes claims that are self-regarding, particularistic, or otherwise germane to private interests.

At this point it is worth sketching out the standpoint that animates this essay.¹⁹ Firstly, an axiomatic truth: legal mobilisation is not reducible to litigation, but litigation is its paradigmatic instantiation. Even if the focus of most studies is on litigation and recourse to formal state institutions, it does not necessarily follow that legal mobilisation is reducible to such activities. Secondly, the target of legal mobilisation can be either a state or a private actor, particularly in late capitalist societies in which social and economic power is increasingly vested in the private sphere. Facebook is as legitimate a target as the State of California. Thirdly, and perhaps most controversially, legal mobilisation is manifested even where claimants are acting in their own self-regarding, particularistic interests and are not socially conscious or imparting political meaning to the nature of their activities. To limit legal mobilisation to activities that are explicitly oriented towards social change places unjustified import on subjective legal attitudes and beliefs over objective impacts – including but not limited to potential outcomes and their broader social and political impacts, irrespective of claimant views at any stage of the process. It also neglects how such views can change over the life-course of such activities; what may begin as a strictly self-regarding action can transform into one which has far-reaching social and political impacts with corresponding shifts in claimant views.²⁰

Class actions in the tradition

To situate class actions in the above research tradition, it is imperative to consider the juridical field of class actions and their role as mechanisms of collective claims-making empowering vulnerable groups, communities, and aggregations of individuals against powerful adversaries (e.g. states or corporations).²¹ The use of class actions can result in massive social change and disruption across the breadth of substantive law, including, as discussed below, in Canada with the class actions arising out of the Residential Schools system and the cultural genocide of Indigenous peoples.²² Such cases of collective legal mobilisation are distinguished by a few features that modulate the aforementioned conceptualisations of legal mobilisation. Before discussing these, however, it is worth reiterating that legal mobilisation has historically involved both individuals and groups, as well as social movement actors advancing social and political objectives that (by extension) affect collectives and social group formations. I use the term ‘collective legal mobilisation’ to mean the use of collective legal mechanisms in formal institutional contexts. The main instantiation of such mobilisation, thus understood, is the class action mechanism. That does not mean that it is reducible to class actions – different regimes may have other mechanisms that can similarly be situated under its aegis.²³ It is likewise noteworthy that some legal mobilisation studies actually do involve legal actions that make use of class action litigation, but relegate their unique dynamics to the background. Finally, it is not the case that class actions have been entirely ignored in the tradition.²⁴ As far back as 1982, Zemans explicitly identified the class action as a ‘ …  structural variable that has great potential to affect legal mobilization’.²⁵ Yet despite this foundational recognition – and McCann, arguably the leading scholar in the tradition, pointing to its unjustified neglect almost 15 years ago – it remains a largely unexplored topic of inquiry.²⁶

A pivotal dynamic of class action regimes is a reversed recruitment paradigm.²⁷ This is often overlooked in civil procedure research, which pays insufficient attention to informal litigation dynamics.²⁸ In contrast to most areas of law, in class action regimes it is generally not the case that a client recruits a lawyer – at the end of a ‘naming, blaming, and claiming’ process in the transformation of a dispute²⁹ – but rather that the lawyer recruits the client. This reorients the traditional focus of individual disputing studies, conceptualised by the model of the ‘dispute pyramid’.³⁰ In brief, this model for dispute processing situates unperceived injuries at the base and once victims have perceived that they have been injured, they have entered the ‘naming’ stage, which is followed by ‘blaming’ (identifying the wrongdoer) and ‘claiming’ (confronting the wrongdoer and demanding redress). If there is no resolution at this stage, the process results in a dispute that can be advanced as an actionable legal claim in formal state institution(s). Scholarship on the dispute pyramid has formed a cornerstone of the legal mobilisation tradition.³¹ It is often based on a bottom-up approach and focuses on individual behaviour, with escalation ‘up the pyramid’ to the point of recruiting a lawyer and taking a case to trial being revealed to be far rarer than previously assumed (in contrast to vociferous mass-media campaigns about runaway rights-claiming and social litigiousness, primarily in the American context).³² When it comes to class actions, however, the pyramid is upturned: the starting point for a class action is the lawyer as agent, not the victim who has perceived an injury who escalates escalates to the point of acquiring the services of a legal professional.³³ Incorporating class actions into the legal mobilisation research tradition thus requires reorienting conceptualisations based on the classic linear model with their foci on individual claimant behaviour and practices of contention towards an increasing focus on the role of lawyers in driving claims-making. This entails paying attention not just to linearity (re. the various conceptualisations of how disputes transform via a pyramid, a tree, or overlapping circles) but also directionality of escalation. Class actions likewise displace the individualising logic of most studies in favour of a ‘collective nomos’ that promotes ‘ …  solidaristic group action’.³⁴

That the driving force in a class action regime is typically the class lawyer (most notably in first- and second-generation regimes) does not mean that there are no other relevant parties. Depending on how a regime is designed, the class lawyer as agent can be complemented by (public or commercial) litigation funders or, as in many third-generation European regimes, ideological claimants – who may be human rights organisations, labour unions, environmental protection groups, or other relevant NGOs. The class lawyer is not primarily motivated by broader social or political objectives. Class action lawyering is entrepreneurial in nature.³⁵ This does not mean that class actions do not achieve social or political objectives, but it does reflect the self-conscious motivations of their main drivers. It has given rise to the signifier ‘private attorney general’ which refers to private legal actors pursuing cases with public importance for personal gain.³⁶ It is perhaps axiomatic to observe that recourse to formal law and litigation must account for the costs and risks associated with such contestation, but such economic criteria and considerations are particularly acute for mass complex litigation.

For present purposes, it suffices to observe that the reversed recruitment paradigm and entrepreneurial nature of class action lawyering demands an expansive understanding of legal mobilisation that is not limited to explicit and self-conscious recourse to law to achieve social or political change or a focus on dispute processing up the pyramid. Class actions likewise sit uneasily with a limited conceptualisation of legal mobilisation as involving human rights advocacy against states as their targets are often private actors, typically corporations, and they chiefly rely on tort law rather than human rights law. The internal legal culture of lawyers operating in the field is also germane given the agentic role of plaintiff lawyers in class action regimes.

To bring these theoretical reflections to a close, a bourgeoning offshoot of the conventional formalistic conceptualisation focuses on legal opportunity structures.³⁷ Scholarship in this sub-tradition tries to explain legal mobilisation by exploring facets of the juridical system that promote or hinder legal contestation (primarily) by social movement actors. The most common among these revolve around basic accessibility (e.g. cost rules, legal standing, legal aid and other funding options), availability of lawyers and legal resources, existence of justiciable rights, and judicial receptivity, as well as more sociological factors such as the cultural context in which claims are pursued and the activity of countervailing forces in a given field of contestation. In the legal mobilisation tradition, class actions could thus be viewed as a potential legal opportunity structure. As procedural mechanisms, class actions can most obviously be situated in the first category in the above litany responding to basic accessibility to courts – and are implicated in several others, including costs rules, funding options, and the availability of lawyers and legal resources. Procedural capacity, in the sense of the availability of an appropriate and well-designed mechanism for claims-making, is a dynamic that is often assumed or implied in extant research; however, it is not a foregone conclusion that the appropriate procedure is available, and even where it is available, it does not necessarily feature the requisite design points to ensure that it is fit for purpose. It is likewise important to recognise that the two respective fields – legal mobilisation and civil procedure – often analyse similar facets of legal contestations and claims-making but deploy their own respective terminologies; for example, where civil proceduralists might see ‘standing’ rules and doctrine at play, legal mobilisation scholars might speak of ‘voice’ and barriers to ‘participation’. Such overlaps are most evident in the legal opportunity structure tradition, which incorporates terminology from both fields.

Finally, that such designs have been hotly disputed fields of contestation between competing social, economic, and political forces testifies to the importance of the mechanism for empowering vulnerable groups. Just as class actions belong in the repertoires of contention for legal mobilisers, so too are they targets of forces seeking to insulate states and corporations from legal accountability. The ‘ …  trimming of class action status is [a] version of violence against legal identity reconstruction’, McCann and Lowell observe, which is part of the ‘ …  standard repertoire of countermobilization manoeuvers by dominant groups in the racial capitalist order’.³⁸ I have similarly observed elsewhere that probing class actions as political vehicles of legal contestation (rather than as neutral civil procedures designed to preserve judicial resources via aggregating duplicative claims) gains credence not only due to their outsized social and political impacts, but because the political dimension is also revealed in the various forces that seek to shape regimes at various stages of legal reform processes.³⁹ It is not without reason that the US Chamber of Commerce, for instance, habitually lobbies foreign jurisdictions during law reform processes involving class actions.⁴⁰ Incorporating class actions into the research tradition is thus less of a radical conceptual or methodological shift than an inclusive expansion to account for what Brown has called ‘ …  the primary legal means by which consumers and workers band together to fight corporate abuses’ and a vehicle of ‘ …  organized popular power’.⁴¹

From the Second to the Third Generation: Canada and Sweden

This section critically explores a few key features of class action regimes in Canada and Sweden. It is not a comprehensive overview of their respective procedural frameworks, nor does it repeat the standard comparativist exercise of identifying similarities and differences for policy-oriented law reform or as part of a normative aim of harmonising law across disparate regimes. What this section does offer, however, is a targeted look at the role of class actions in facilitating collective legal mobilisation, with a focus on Indigenous claims-making arising out of Residential Schools abuses. It then explores class actions in Sweden with a critical view at key design points that can account for the relatively tepid state of Sweden’s regime. In so doing, the following subsections illustrate the relevance of the study of class actions for the legal mobilisation tradition. As further elaborated below, in contrast to much comparative class action research that situates the US as a chief comparator, Canada and Sweden have been selected as comparators because they are both mature transplant regimes, the former from the second generation and the latter from the third. I highlight the Residential Schools class actions, and Indigenous claims more broadly, because they are emblematic of not only the promises and perils of the mechanism, but also of legal mobilisation in general, which lends credence to a critical theory of collective legal mobilisation, as introduced in the next section.

Collective legal mobilisation in Canada

Canada was the second country after the US to adopt class actions. Along with Australia, this situates Canada as a second-generation regime.⁴² In 1978, Quebec introduced class action legislation; a protracted reform process in Ontario then resulted in its own regime in 1992.⁴³ Other common law provinces soon followed suit: British Columbia in 1995,⁴⁴ Newfoundland and Saskatchewan in 2002,⁴⁵ Manitoba in 2003,⁴⁶ Alberta in 2004,⁴⁷ New Brunswick in 2006,⁴⁸ and Nova Scotia in 2007.⁴⁹ After a slow gestation period, class actions have proliferated across the country and become firmly entrenched as the main legal mechanism used by groups in collective claims-making across the breadth of substantive law, including (but not limited to) claims arising out of human rights abuses, environmental degradation, labour exploitation, and police brutality.

There is perhaps no area in which the promises and perils of this type of collective legal mobilisation have been quite as notable as the cases arising out of the cultural genocide of Indigenous peoples. In particular, a host of class actions were advanced across Canada from the early 2000s onwards based on the abuse of Indigenous children in the Residential Schools system.⁵⁰ This was a boarding-based educational system (1867–2000) designed to ‘ …  civilize and Christianize’ Indigenous peoples by forcibly removing children from families and engaging in various forms of deracination and assimilation strategies, such as stripping them of their native languages, customs, and other modes of being.⁵¹ At least 150,000 children were victims of this campaign of cultural genocide.⁵² Child victims of the Residential Schools system experienced gross human rights violations, including rampant physical and sexual abuse, malnutrition and starvation, and healthcare negligence to the point of death (often resulting from untreated diseases such as smallpox, influenza, tuberculosis, measles, and dysentery).⁵³ At the time of writing (2023), unmarked mass graves of children are still being discovered across Canada, and numerous potential sites of other mass and unmarked graves have been flagged but not yet excavated.⁵⁴

After a tumultuous legal battle against, among other defendants, the Canadian state and Christian churches (including the Presbyterian, Anglican, Roman Catholic, and the United Church of Canada), surviving victims were offered various forms of redress. It was the largest class action settlement in Canadian history, featuring a CAD 5 billion fund, the implementation of various medical and educational programmes, and formal apologies issued by main institutional perpetrators and their representatives, such as by Pope Francis on behalf of the Roman Catholic Church and the Prime Minister of Canada at the time, Stephen Harper.⁵⁵ The ensuing Truth and Reconciliation Commission of Canada (TRC) was established in 2008 to bring together testimonies and voices of victims; the process ended in 2015 and received mixed reactions – including criticism by Indigenous communities and settler allies that its recommendations and future pathways to change have been poorly adopted or neglected by relevant actors, primarily Canadian state institutions.⁵⁶

It is difficult to undervalue the role that collective legal mobilisation has played in this still ongoing process for respect, recognition, and reconciliation.⁵⁷ The availability of the class action mechanism to aggregate the claims of fragmented victims, many of whom experience various forms of legal alienation and face significant social and psychological barriers to accessing the legal system, was a precondition for the mobilisation that followed. Recourse to the use of law and such legal contestation also brought a sense of empowerment, democratic voice, and representation to many Indigenous victims facing an otherwise hostile political opportunity structure in their pursuits of justice for historical and ongoing colonial violence and human rights abuses.

This should not, however, be taken as a wholesale endorsement of the design of respective provincial regimes or the behaviour of agents in the juridical field.⁵⁸ Just as the beneficial role that class action can play was on display in Canada, so too were its shortcomings, not least in the conduct of certain class action lawyers who sought to maximise their own profits at the expense of victims. The case was a particularly egregious example of the entrepreneurial, opportunistic, profit-maximising dynamics for which class actions are often critiqued. In an excellent analysis of such behaviour, Farrow has identified a litany of exploitative misbehaviours and unprofessional conduct, variously described by courts and law societies as ‘unscrupulous’, ‘offensive’, ‘undignified’, and giving rise to ‘revictimization’ by taking advantage of vulnerable survivors.⁵⁹ That such actions operated on (excessive) contingency fees reinforced this entrepreneurial misbehaviour, with some lawyers seeking percentages as high as 45% and one well-known law firm seeking fees upwards of CAD 100 million.⁶⁰ That is not to imply that all plaintiff lawyers behaved in such ways, but rather to observe that the extremity of such exploitative conduct was such that it has precipitated re-evaluations of the codes of conduct of the legal profession in Canada, including by the Canadian Bar Association.⁶¹

It is likewise pivotal to recognise, as described in greater detail in the next section, that such recourse to law and legal contestation has clear limitations with respect to the justice aspirations of victims/claimants. The Canadian TRC arose in part out of these limitations of the ‘positivist judicial process’ with its ‘ …  individualizing discourse that emphasized specific victims, particular perpetrators, and relatively narrow understandings of wrongdoer responsibility’ and constructed ‘hierarchies of victimization’ which ultimately denied redress for many survivors of the Residential Schools system.⁶²

The crux here is that the class action mechanism has a clear collectivising power which aggregates often fragmented and diffuse claims into a cohesive entity, thereby offering strength in numbers against powerful adversaries. Yet because such class actions regimes operate by encouraging legal professionals to bring forward such cases typically via economic incentivisation,⁶³ the juridical field has an entrepreneurial doxa in which market principles, criteria, and incentives can interfere with the integrity of the claims-making process and ultimately compromise the justice owed to victims. Such compromises can take various forms, including reorienting the types of justice sought toward strictly monetary compensation. This latter facet refers to the ‘compensationalist hegemony’⁶⁴ in which monetary outcomes are preferred by class lawyers over other forms of substantive justice, such as cessation of wrongful activity, social recognition of loss, and broader social, cultural, and political changes. In the Residential Schools class actions, the focus of most class lawyers was to ‘ …  maximise monetary settlements for their clients’, in contrast to the broader social justice objectives of the Assembly of First Nations which sought forms of reconciliation and healing beyond the strictly monetary.⁶⁵

Moreover, as the main drivers of class litigation are largely spurred by economic rather than social, political, or otherwise ideological motivations, cases that fail to meet those economic criteria in a reversed recruitment paradigm fall by the wayside.⁶⁶ As much as advocates may wish to clothe class lawyers as private attorneys general seeking to pursue social goods, it is scarcely a coincidence that the cases involving the cultural genocide of Indigenous peoples in Canada involved astronomical sums. The Baxter action alone, for instance, sought CAD 12 billion in compensation.⁶⁷ Clearly this is not to say that such cases do not have broader social and public import, but rather that such import is not decisive at case selection. The Residential Schools class actions demonstrate the potential of such collective legal mobilisation, and the wide-ranging impacts across Canada testify to this even as they expose the shortcomings, thereby offering both encouragement and warnings to other regimes in which such campaigns are increasingly being legitimated both formally across the breadth of law as well as substantively in the context of Indigenous claims-making. This latter point is particularly applicable to settler-colonial states like Sweden and its neighbours, given their own histories with cultural genocide and assimilationist/deracination policies, including forms of residential schooling (affecting Sámi Peoples in Sweden, Norway, and Finland, and Inuit Peoples in Denmark/Greenland).

The oldest class action regime in the Nordics

Sweden’s class action regime is the oldest in the Nordics,⁶⁸ placing it firmly in the third generation in the global history of class actions. Despite this status, class actions remain on the periphery of the Swedish juridical field.⁶⁹ The regime was enacted in 2003 with the anticipation that it would yield about 20 actions per year,⁷⁰ yet in the 20 years since only 22 class actions have been advanced.⁷¹ This torpid state of affairs warrants some critical inquiry with respect to what it portends for collective legal mobilisation in Sweden.

Every twenty-first-century society is faced with justiciable problems affecting large groups of people. The processes of mass production, consumption, and reproduction associated with the rise of capitalist state formations (industrialisation, urbanisation, financialisation, mechanisation) have caused the same or similar harms to groups that are often fragmented and diffused across vast spatial and temporal contexts. Mass litigation is a natural outgrowth of these mass harms – from mass human rights abuses and mass labour exploitation and industrial disputes to mass consumer violations, mass financial harms, and so forth. When a state, then, introduces a collective claims-making mechanism to deal with such mass harms, and resort to that mechanism is infrequent, the obvious questions must be raised about the efficacy of its design and the existence of other (perhaps traditional) pathways for addressing those mass harms. In the social democratic Swedish state, the well-established tradition of state corporatism and reliance on public agencies and authorities to address such harms is certainly part of why its class action regime has experienced low usage rates.⁷² Given space limitations, this essay will bracket the discussion of the panoply of state-based/state-oriented responses to focus on the design of the regime.

The first port of call for anybody seeking to understand why a class action regime has failed to facilitate claims to any meaningful degree is an examination of its requisite design points. These refer to variables used by legislators that shape a regime. Leading class action scholar Rachael Mulheron has identified over 100 design points that cumulatively structure a regime’s operability and efficaciousness.⁷³ Among these points, the most contested is typically whether the regime operates according to an opt-in or an opt-out model (or in some cases, like the Competition Appeal Tribunal in England and Wales, a mixture of the two). An opt-out model is preferable for reformers seeking to promote class actions, because all potential claimants are included as members of the class unless they explicitly opt out of the proceeding. This harnesses the collectivist power of the mechanism and reduces the up-front costs of mounting an action. The opt-out model can also be advantageous for defendants, who can draw from the benefits of res judicata; that is, finality with respect to the litigation (which cannot be relitigated), thus offering closure to defendants. By contrast, an opt-in model requires every potential class member to proactively sign up for the proceeding, significantly increasing costs and reducing collectivism by fracturing the class. This is a critical design point: empirical research consistently indicates that human beings have an inertia bias with preferences in favour of the status quo and inaction (even when confronted by justiciable problems; this phenomena is called ‘lumping it’ in classic access to justice research).⁷⁴ In the context of the opt-in/opt-out debate, this indication is borne out by both low opt-in and opt-out rates; that is, individuals infrequently opt-out of class actions (in opt-out regimes) and infrequently opt-in (in opt-in regimes).⁷⁵

The model adopted in the design of a regime is thus of paramount importance. The opt-out model is typically favoured by progressive proponents in regimes where class actions have been introduced, such as human rights organisations, environmental groups, trade unions, and the like, whereas the opt-in model is favoured by critics, such as corporate lobby groups, banking and insurance conglomerates, and resource extraction corporations.⁷⁶ Sweden has adopted an opt-in model, as favoured by the latter groups, resulting in a restrictive and inefficacious regime that constrains the capacities of the mechanism in numerous ways. Consider (as a thought exercise) the claims that gave rise to the Residential Schools actions in Canada. In an opt-in regime, the surviving victims of the genocidal campaign (about 86,000 people) would have to overcome the obstacles associated with pervasive legal alienation as colonised subjects, as well as the myriad social and economic barriers and psychological traumas associated with their horrific experiences as children, to each individually seek out and proactively sign up for a speculative legal proceeding. That may align with certain theoretical perspectives on civil justice principles, but it does not reflect a socially reflexive understanding of human behaviour. It remains to be seen what the regime’s design portends for the myriad abuses of Sweden’s own colonial history with Sámi peoples, but it is prima facie apparent that the design benefits available to Indigenous peoples in Canada are not available for Sámi collective legal mobilisation in Sweden.⁷⁷

I will not expound on every design point in Sweden’s procedural framework – these are identified at length in various policy-based national reports on Sweden⁷⁸ – but it is worth drawing attention to two other facets of its regime that shape the legal opportunity structures for potential mobilisers. Firstly, Sweden’s regime has an inhospitable costs and fees climate in which the so-called English ‘loser pays’ rule is applied and contingency fees are prohibited.⁷⁹ This creates major disincentives for any actor considering bringing forward such costly and complex mass litigation. It results in a relatively closed legal opportunity structure on this critical economic dimension. Secondly, a positive feature: the Swedish regime has a generous approach to standing that allows for ideological claimants to bring cases. Unlike even a mature second-generation regime like Canada, Sweden permits organisations that are not directly affected by the substantive cause of action to advance claims on behalf of affected groups. For example, an environmental NGO can bring an action against a corporation on behalf of a community that has experienced toxic poisoning due to that corporation’s resource extraction activities. This design point sets the stage for organisational use of class actions without the synthetic need to recruit a representative plaintiff. It also allows for fluid incorporation of class actions into the repertoire of contention of social movements.

Yet the stagnating state of Sweden’s class action regime cannot be solely attributed to design points or procedural limitations, even as these structure the legal opportunities available to potential mobilisers. Sweden’s internal and external legal culture is distinct from the three more mature regimes (Canada, Australia, and the US), which belong in the adversarial legalism tradition and in which residents are more active in resorting to formal legal pathways to justice, lawyers exhibit more aggressively entrepreneurial traits, and the juridical field is shaped to a greater extent by market forces. In these mature regimes, the entrepreneurial lawyering that enables class actions enjoys greater social and juridical legitimacy. This does not mean that class actions do not have a potentially bright future in Sweden. Nor does it imply that the Swedish juridical field must adopt a foreign or undesirable ethos of entrepreneurialism more commonly associated with stereotypes of American litigation culture. It rather positions Sweden as a fascinating laboratory for collective legal mobilisation which, on one hand, permits ideological claims-making, while also, on the other, curtails the type of egregious entrepreneurial (mis)conduct found in even the most healthily functioning regimes, like those in Canada.

While it is true that Sweden has the oldest class action regime in the Nordics, and arguably across Europe, it is likewise true that it is still relatively early in its maturation.⁸⁰ The array of contestations and uses of law commonly categorised under the umbrella of legal mobilisation are similarly newcomers to its juridical field. It is thus premature to make sweeping statements on the relative successes or failures of Swedish class actions or collective legal mobilisation campaigns.

New and Future Trajectories

This section identifies a few key features of class action and legal mobilisation scholarship, advocating in both cases for greater focus away from US-centric studies towards comparative research that incorporates regimes and legal contestations across the globe, many of which have recently adopted class actions as legal transplants and begun engaging in forms of legal mobilisation. The section concludes by advocating for a critical approach to collective legal mobilisation that problematises conventional legal narratives and forms of legality.

Class actions and legal mobilisation in comparative perspective

Since their modern origins in 1966 in the US as a response to the plethora of desegregation claims involving large numbers of African Americans chiefly in the Deep South,⁸¹ the study of class actions has been stamped with an American focus. The wide range of causes subsequently advanced as class actions during their initial heyday (1966–1976) in the US revealed their potential in increasing access to justice and promoting collective claims-making.⁸² The late 1970s to the mid-1990s marked the second stage in the proliferation of class actions, as Canada and Australia transplanted the mechanism into their respective frameworks. Since the early 2000s, a third wave of class action transplantation is discernible, with over 35 states globally introducing regimes.⁸³ Despite this veritable globalisation, the vast majority of class action research remains focused on American developments. Where research has adopted an international framework, this has largely consisted of edited volumes in which contributors offer national reports, rather than cohesive comparative research.⁸⁴ The field also remains chiefly within the purview of civil proceduralists and legal theorists, despite the wide-ranging social and political impacts of the mechanism and the importance of factors and dynamics beyond the formalistic, including (internal/external) legal culture, financialised motives and imperatives, commercial funding interests, legal actor behaviour, and competing social and economic forces in the juridical field. By situating class actions in the legal mobilisation tradition, many of these dynamics are brought to the fore. To echo McCann’s call for incorporating class actions, much work remains to be done in cultivating the field and exploring the ways in which such claims-making is deployable. Adopting a comparative methodological approach is suitable; in point of fact, most class action research outside the American context already has strong comparativist features, which is perhaps unsurprising given that class actions are paradigmatic examples of a globally proliferating legal transplant. This research has, however, often taken the shape of policy-oriented analyses that seek to draw lessons from mature regimes in designing frameworks.⁸⁵

Studies of legal mobilisation similarly find their modern origins in the various litigation and civil rights campaigns in the US in the 1950s and 1960s. Growing cynicism about representative political pathways to social change precipitated a move towards embracing strategic uses of law and legal contestation to promote the objectives of social movements and interest groups in subsequent years. Although this research field has historically focused on American developments, recent years have witnessed a noticeable shift in the extent and ways in which such studies have spread globally. From Peru,⁸⁶ Colombia,⁸⁷ and broader Latin America,⁸⁸ to various African regimes, including Egypt,⁸⁹ Sierra Leone,⁹⁰ and South Africa,⁹¹ and across Asia, including notably India,⁹² such studies have rapidly proliferated since the early 2000s. This is likely due to a similar confluence of factors that facilitated the growth of legal mobilisation at its origins: chiefly the juridification of the social sphere and expanding processes of legalisation in the pursuit of social and political objectives, as well as relatively closed political opportunity structures and pathways to social change. The latter is particularly acute in regimes with political systems that limit the capacities of citizens to make claims, pursue their respective objectives, or simply have meaningful voice and participate in political processes.⁹³ Several recent studies have explicitly focused on the role of legal mobilisation in (‘new’) authoritarian states, such as Russia,⁹⁴ Singapore,⁹⁵ Hong Kong,⁹⁶ Myanmar,⁹⁷ and China.⁹⁸ Far from straightforwardly applying traditional models to new settings and contexts, this burgeoning literature moves beyond the US-centric cornerstones, aligning harmoniously with the shift in class action scholarship towards third-generation regimes. Although legal mobilisation research has traditionally focused to a greater extent on in-depth studies of specific national contexts,⁹⁹ both fields stand to gain from incorporating the frames and modes of inquiry of comparative sociology of law to examine and explain commonalities, divergences, and constituent differences in comparator legal cultures, legal professions, normative orders, and juridical fields of contestation.

Towards a critical theory of collective legal mobilisation

The idea of ‘collective legal mobilisation’ as introduced in this essay involves a combination of a collective mechanism (i.e. class action) and legal mobilisation. The narratives of both the mechanism and the activity warrant some consideration in the context of new and future trajectories of the field. On the former, legal historian David Marcus has relayed that in one reading the story of modern class action is ‘ …  a story of good-hearted private citizens riding to the rescue of vulnerable communities injured by corporate behemoths’, of ‘ …  the Civil Rights Movement’s ebbs and flows, of the perils of a mass consumer society, of judicial activism, of HIV, of tobacco, and of Wall Street greed’, while in another reading it is ‘ …  a tale of massive corruption engineered by lawyer parasites’ and ‘ …  a capitalism story about the commodification of law enforcement’.¹⁰⁰ Both narratives – the former reinforcing the reification of liberal legalism and the latter perpetuating tort-tales popularised by corporate lobby groups like the US Chamber of Commerce’s Institute for Legal Reform – are reductive portrayals of the reality of class action history and practice, with all its promises and perils.

Legal mobilisation scholars should similarly be mindful to not engage in uncritical reification and romanticism of the legal campaigning that occurred during the American Civil Rights Movement. The ideological obfuscations that arise out of mythologised narratives of former struggles and their triumphs continue to animate the justificatory bases of mobilising law – even as a heterodox reading of the tradition reveals that many studies are engaged in projects of identifying and exploring the limits and failures of such contestations rather than documenting victories.¹⁰¹

Underlying such reification and romanticism is an unstated normative assumption that legal mobilisation is ontologically progressive. If it was not apparent at the time that the use of law and legal contestation in pursuit of individual, collective, or social and political goals is not confined to progressive actors and objectives, it has certainly become so in the intervening decades. Conservative recourse to law has often been termed ‘counter-mobilisation’, yet categorising conservative legal contestations as a countervailing weight reinforces the view that legal mobilisation has a naturally progressive character. That view is not borne out by social reality. In fact, many incidents of progressive recourse to the use of law are reactions to conservative actions and must, by definition, be categorised as forms of counter-mobilisation. More to the point, some of the most successful campaigns in recent memory have been undertaken by conservative forces and social factions.¹⁰² The study of conservative legal mobilisation is a ripe area for future research. All of which is to say, legal mobilisation is more accurately understood as a tactic that can be used by actors and forces across the political spectrum rather than the natural purview of progressive forces and social formations.

In a similar vein, optimism about state capacities to respond to claims and enact justice aspirations warrants tempering. This typically emerges from a perception of law and courts as neutral fora. Even as law remains a pivotal site of contestation, and can be strategically deployed against a variety of legal injustices, it remains disproportionately shaped by powerful social, economic, and political forces that perpetuate structural inequalities.¹⁰³ The two comparator states in this essay, for instance, are both implicated in forms of colonial exploitation spanning centuries and including the present day, and the potential of Sámi legal mobilisation in Sweden and the plethora of Indigenous legal contestations in Canada to achieve sweeping or radical change – such as recognition of sovereignty and its associated rights and entitlements – through colonial state institutions is remote.

In its social and political mould, legal mobilisation is an explicit politicisation of the juridical field – and, conversely, a legalisation of the social and political. Much ink has been spilt on this and other cognate phenomena,¹⁰⁴ forming a curious case study of a confluence in criticism among competing factions across the political spectrum; commentators agree on the undesirability of such phenomena, albeit for markedly different reasons often concerning the rise of the juristocracy and entrenchment of liberalism.¹⁰⁵ Comaroff and Comaroff have reflected on this juridification with a pithy yet fitting statement: ‘Class struggles seem to have metamorphosed into class actions.’¹⁰⁶ They go on to decry the ‘ …  ever mutating kaleidoscope of coalitions and cleavages’ in which ‘[c]itizens, governments, and corporations litigate against one another, often at the intersection of tort law, human rights law, and the criminal law’.¹⁰⁷ This standpoint reflects long-standing left scepticism towards law and judicial power – which can be traced through Marx’s early critique of legal forms,¹⁰⁸ to Thompson,¹⁰⁹ Griffith,¹¹⁰ and Neumann,¹¹¹ through to current critics such as Brown,¹¹² Halley,¹¹³ and Kennedy¹¹⁴ – and is more contemporaneously associated with critical legal perspectives, which bear keeping in mind for those seeking to invest radical egalitarian hopes in legal mobilisation campaigns.

However future research on collective legal mobilisation develops, it will benefit from navigating beyond the reductive and partisan narratives of legality that have animated both class action and legal mobilisation scholarship. Clearly, legal mobilisation seeking social or political change is often pursued by agents for whom political opportunity structures are otherwise foreclosed. That is why such campaigns have been waged by groups seeking racial justice, gender equality, LGBTQ rights, and a plethora of other issues facing vulnerable and marginalised groups and communities. It is also why recourse to law and legal contestation has been a key tool in Indigenous struggles against colonial injustices in both Sweden and Canada. Yet the forces that foreclose political opportunity structures can often be found in rearticulated forms in the legal system, not least in judicial receptivity to claims with far-reaching political implications and even those that problematise, if not undermine, the very legitimacy of state institutions, including the (neo)colonial character of the judiciary in settler-colonial states like Canada and Sweden. In particular, future research can benefit from emphasising the social, economic, and political forces that constrain recourse to law and legal contestation, as well as the ‘ …  complicity of law’s work in sustaining structural inequality’.¹¹⁵ A modicum of critical reflexivity – whether based in critical race and critical legal theory, postcolonial and decolonial theory, heterodox political economy, feminist, queer, and critical disability theory, or any combination thereof – will enrich the study of collective legal mobilisation moving forward.

Conclusion

By way of conclusion, a note of clarification: both class actions and legal mobilisation are relatively novel developments in Sweden. It bears reiterating, then, that the promises of the use of law as part of repertoires of contention for social movements, or simply in pursuit of individual or collective goals, should be realistic and circumscribed according to any given context. Avoiding the romanticism of liberal legalism and the reification of class actions is most effectively done by heeding insights from comparative regimes, like Canada, with richer histories of legal adversariality and its outcomes. I have thus sought to strike a balance between highlighting the relevance and potential of class actions as part of legal mobilisation campaigns and scholarship, and recognising their limitations in practice. This essay has likewise expounded on the potential that may lay dormant in third-generation regimes such as Sweden’s provided that requisite design points are incorporated along with shifts in legally-oriented norms and practices. Class actions are not without their shortcomings, but a well-designed regime that capitalises on their strengths, along with principled conduct by legal professionals and other relevant juridical actors, can empower vulnerable groups against mass injustices that span the breadth of law.

Notes

1 Michael McCann, ‘Litigation and Legal Mobilization’ in Gregory Caldeira, R Daniel Kelemen and Keith E Whittington (eds), The Oxford Handbook of Law and Politics (Oxford University Press 2008) 535.

2 Ibid.

3 See e.g. Jerome E Carlin, Jan Howard and Sheldon L Messinger, Civil Justice and the Poor: Issues for Sociological Research (Russell Sage Foundation 1967); F Levine and E Preston, ‘Community Reorientation Among Low Income Groups’ [1970] Wisconsin Law Review 80; Donald Black, ‘The Mobilization of Law’ (1973) 2 Journal of Legal Studies 125; Stuart A Scheingold, The Politics of Rights: Lawyers, Public Policy, and Social Change (Yale University Press 1974); Joel F Handler, Lawyers and the Pursuit of Legal Rights (Academic Press 1978); Linda Medcalf, Law and Identity: Lawyers, Native Americans, and Legal Practice (Sage 1978).

4 McCann (n 1) 536.

5 This section owes a particular debt to the excellent conceptual analysis recently offered in Emilio Lehoucq and Whitney Taylor, ‘Conceptualizing Legal Mobilization: How Should We Understand the Deployment of Legal Strategies?’ (2020) 45 (1) Law & Social Inquiry 166.

6 Frances K Zemans, ‘Legal Mobilization: The Neglected Role of Law in the Political System’ (1983) 77 (3) American Political Science Review 690, 700.

7 Richard Lempert, ‘Mobilizing Private Law: An Introductory Essay’ (1976) 11 (2) Law & Society Review 173, 173; Lehoucq and Taylor (n 5) 166, 170.

8 Robert Cover, ‘Nomos and Narrative’ (1983–84) 97 (4) Harvard Law Review 4; Robert Cover, ‘Violence and the Word’ (1986) 95 (8) The Yale Law Journal 1601.

9 Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Routledge 2017).

10 Michael McCann and George Lovell, Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism (University of Chicago Press 2020).

11 This forms part of a broader project on legal mobilisation theory that I am currently undertaking.

12 Charles Tilly and Sidney Tarrow, Contentious Politics (Oxford University Press 2015).

13 Lehoucq and Taylor (n 5) 166, 171. Julieta Lemaitre and Kristin Sandvik , ‘Shifting Frames, Vanishing Resources, and Dangerous Political Opportunities: Legal Mobilisation among Displaced Women in Columbia’ (2015) 49 (1) Law & Society Review 5, 8.

14 Charles R Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (University of Chicago Press 1998) 18.

15 Lehoucq and Taylor (n 5) 166, 185.

16 This leads to what Lehoucq and Taylor (n 5) 173 describe as a ‘ …  decoupling of conceptualization and operationalization’.

17 Ibid. 174.

18 Ibid. 174–75.

19 The parameters of this conceptualisation are informed by the categorisations offered by Lehoucq and Taylor (n 5) 172.

20 Ibid. 174. See also Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (University of Chicago Press 1994).

21 This does not imply that class actions are strictly used in such ways as they have likewise been deployed in disputes involving relatively powerful actors on both sides of the aisle (re. plaintiffs and defendants).

22 These are typically high-profile cases rather than the run-of-the-mill cases which, at least in Canada, tend to focus on securities and shareholder disputes.

23 For example, the Group Litigation Order in England and Wales. Relatedly, the poor record of the GLO in that jurisdiction reflects the need for introducing a generic opt-out class action that can better facilitate collective legal mobilisation and advance collective claims-making: see Michael Molavi, Collective Access to Justice: Assessing the Potential of Class Actions in England and Wales (Policy Press 2021).

24 See e.g. Paul Burstein, ‘Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity’ (1991) 96 (5) American Journal of Sociology 1201.

25 Frances K Zemans, ‘Framework for Analysis of Legal Mobilization: A Decision-Making Model’ (1982) 7 (4) American Bar Foundation Research Journal 989, 1065.

26 For a promising recent special journal issue on the topic in South African context, see J. Handmaker, ‘Introduction to Special Issue: Class Action Litigation in South Africa’ (2021) 37 (1) South African Journal on Human Rights 1.

27 Michael Molavi, ‘Access to Justice and the Limits of Environmental Class Actions in Ontario’ (2020) 35 (3) Canadian Journal of Law and Society/Law Revue Canadienne Droit et Société 391.

28 The recruitment of ideal candidates for test cases and strategic litigation is a long-standing practice in legal mobilisation campaigns.

29 William LF Felstiner, Richard L Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming … ’ (1080–81) 15 (3/4) Law & Society Review 631.

30 Ole Hammerslev and Annette Olesen have proposed an innovative new model based on an impressive meta-ethnography of research that deploys the standard model, finding instead of progressing linearly in the transformation, there is rather a repeat process of re-naming, re-blaming, and re-claiming: see A Olesen and O Hammerslev, ‘The Dynamic and Iterative Pre-Dispute Phases: The Transformation from a Justiciable Problem into a Legal Dispute’ Vol 50, Issue 1 (2023) 120–138. See also Annette Olesen and Ole Hammerslev, ‘Bringing Sociology of Law Back into Pierre Bourdieu’s Sociology: Elements of Bourdieu’s Sociology of Law and Dispute Transformation’ (2022) Vol 32, Issue 2 (2023) 177–196 1.

31 See e.g. Richard E Miller and Austin Sarat, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980–81) 15 Law & Society Review 525; Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press 1981); J Brigham, The Constitution of Interests: Beyond the Politics of Rights (New York University Press 1996); Calvin Morrill, Lauren B Edelman, Karolyn Tyson and Richard Arum, ‘Legal Mobilization in Schools: The Paradox of Rights and Race Among Youth’ (2010) 44 (3/4) Law & Society Review 651; David McElhattan, Laura Beth Nielsen and Jill D Weinberg, ‘Race and Determinations of Discrimination: Vigilance, Cynicism, Skepticism, and Attitudes about Legal Mobilization in Employment Civil Rights’ (2017) 51 (3) Law & Society Review 669.

32 See e.g. William Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis (University of Chicago Press 2009); David M Engel, The Myth of the Litigious Society: Why We Don’t Sue (University of Chicago Press 2016).

33 This dynamic is typically at play in common law regimes such as Australia, Canada, and the United States.

34 McCann and Lovell (n 10) 319.

35 John Coffee Jr, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press 2015).

36 Carl Cheng, ‘Important Rights and the Private Attorney General Doctrine’ (1985) 73 (6) California Law Review 1929; Jeremy A Rabkin, ‘The Secret Life of the Private Attorney General’ (1988) 61 (1) Law and Contemporary Problems 179; David F Engstrom, ‘Harnessing the Private Attorney General: Evidence from Qui Tam Litigation’ (2012) 112 (6) Columbia Law Review 1244.

37 See e.g. Chris Hilson, ‘New Social Movements: The Role of Legal Opportunity’ (2002) 9 Journal of European Public Policy 238; Ellen Ann Andersen, Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (University of Michigan Press 2005); Bruce M Wilson and Juan Carlos Rodríguez Cordero, ‘Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics’ (2006) 39 Comparative Political Studies 325; Rachel A Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge University Press 2007); Rhonda Evans Case and Terri E Givens, ‘Re-Engineering Legal Opportunity Structures in the European Union? The Starting Line Group and the Politics of the Racial Equality Directive’ (2010) 48 Journal of Common Market Studies 221.

38 McCann and Lovell (n 10) 395.

39 Molavi, Collective Access to Justice (n 23).

40 Ibid.

41 Wendy Brown, ‘Law and Legal Reason’ in Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books 2015): 152–54.

42 I owe this temporalisation of class action regimes into discrete generations to Rachael Mulheron: see Rachael Mulheron, ‘The United Kingdom’s New Opt-Out Class Action’ (2017) 37 (4) Oxford Journal of Legal Studies 814.

43 Class Proceedings Act, SO 1992, c 6.

44 Class Proceedings Act, RSBC 1996, c 50.

45 Class Actions Act, SNL 2001, c C- 18.1 and Class Actions Act, SS 2001, c C- 12.01 respectively.

46 Class Proceedings Act, CCSM, c C130.

47 Class Proceedings Act, SA 2003, c C- 16.5.

48 Class Proceedings Act, SNB 2006, c C- 5.15.

49 Class Proceedings Act, SNS 2007, c 28. I have written at length about this legislative history and the variability across these provincial regimes elsewhere. See e.g. Molavi, Collective Access to Justice (n 23).

50 The leading case of which was Cloud v Can (AG), (2004) 192 OAC 239 (CA).

51 The Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The History, Part 1 – Origins to 1939, Vol. I (McGill-Queen’s University Press 2015); The Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The History, Part 2–1939 to 2000 (McGill-Queen’s University Press 2015).

52 Ibid.

53 The Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Legacy (McGill-Queen’s University Press 2015).

54 The Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: Missing Children and Unmarked Burials (McGill-Queen’s University Press 2016).

55 Ibid.

56 The 94 Calls to Action identified in the Final Report by the Truth and Reconciliation Commission have been unevenly adopted (to put it mildly). These span the breadth of the continuum for addressing the colonial legacy of the Residential Schools, including on child welfare, education, language and culture, health, justice, equity for Indigenous peoples in the legal system, adoption of international declarations on the rights of Indigenous peoples, professional development and training for public servants, youth programmes, museums and archives, missing children and burial information, and reconciliation initiatives involving sports, media, and business, among others: The Final Report of the Truth and Reconciliation Commission of Canada (n 53) 277.

57 It is important to note, too, that the politics of recognition implicit in many of the processes associated with the Truth and Reconciliation Commission has been criticised as reinscribing the power of colonial agents over colonised subjects and proffering the potential of reconciliation based on acknowledgement: see e.g. Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (University of Minnesota Press 2014). Coulthard’s critique is inspired by the Franz Fanon’s classic 1952 treatise: Franz Fanon, Black Skin, White Masks (Penguin 2021).

58 Nor should the availability of such a mechanism, the deployment of which is tantamount to more effective participation in settler-colonial state institutions, be viewed as a substitute for direct action and protests that challenge the very legitimacy of such institutions – as exemplified by ongoing Indigenous resistance movements, such as Idle No More and Red Power, with their respective decolonisation objectives.

59 Trevor CW Farrow, ‘Residential Schools Litigation and the Legal Profession’ (2014) 64 (4) University of Toronto Law Journal 596, 610.

60 Ibid.

61 Ibid. 611–17.

62 David Macdonald, ‘Canada’s Truth and Reconciliation Commission: Assessing Context, Process, and Critiques’ (2020) 29 (1) Griffith Law Review 150, 154, 156.; see also Jennifer Henderson, ‘Residential Schools and Opinion-Making in the Era of Traumatized Subjects and Taxpayer-Citizens’ (2015) 49 (1) Journal of Canadian Studies/Revue d’études canadiennes 5; Matt James, ‘The Structural Injustice Turn, the Historical Justice Dilemma and Assigning Responsibility with the Canadian TRC Report’ (2021) 54 (2) Canadian Journal of Political Science 374.

63 See n 35.

64 Myriam Gilles and Gary B Friedman, ‘Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers’ (2006) 155 (1) University of Pennsylvania Law Review 103.

65 Macdonald (n 64) 154–55.

66 Jasminka Kalajdzic, Class Actions in Canada: The Promise and Reality of Access to Justice (University of British Columbia Press 2018); Jasminka Kalajdzic and Catherine Piché, Class Actions: Objectives, Experiences and Reforms – Final Report (Law Commission of Ontario 2019).

67 Baxter v Canada (Attorney General) (2006), 83 OR (3d); see also Jim Miller, ‘Reconciliation with Residential School Survivors: A Progress Report’ in Jerry White, Dan Beavon and Julie Peters (eds), Aboriginal Policy Research: Voting, Governance, and Research Methodology (Thompson Education 2010).

68 Robert Gaudet, ‘Lessons Learned From Swedish, Danish, Dutch, and Norwegian Class Actions: Comments on the White Paper on Damages Actions for Breach of the EC Antitrust Rules COM (2008) 165 Final’ 14 July 2008 <https://ec.europa.eu/competition/antitrust/actionsdamages/white_paper_comments/gaudet_en.pdf>.

69 I have recently made this argument in Michael Molavi, ‘Encountering Class Actions in Swedish Law and Society’ (2022) 2 (2) Mass Claims: An International Journal with a European Focus 19.

70 Lag (2002:599) om grupprättegång <www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-2002599-omgrupprattegang_sfs-2002-599> (in Swedish).

71 There is no comprehensive database of class actions in Sweden. This statistic is based on the admirable efforts of Anna Wallerman Ghavanini to collect data from the National Courts Administration Authority and district courts: see Anna Wallerman Ghavanini, ‘United We Stand, Divided We Sue: Collective Access to Court for Labour and Social Security Claims in Sweden’ (2021) 12 (4) European Labour Law Journal 498.

72 Laura Carlson, ‘Access to Justice in Sweden from a Comparative Perspective’ in Barbara Havelková and Mathias Möschel (eds), Anti-Discrimination Law in Civil Law Jurisdictions (Oxford: Oxford University Press 2019) 118–35.

73 Rachael Mulheron, Class Actions and Government (Cambridge University Press 2020).

74 Molavi, Collective Access to Justice (n 23) 119–20; William Samuelson and Richard Zeckhauser, ‘Status Quo Bias in Decision-Making’ (1988) 1 Journal of Risk and Uncertainty 7; Daniel Kahneman, Jack L Knetsch and Richard H Thaler, ‘Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias’ (1991) 5 (1) Journal of Economic Perspectives 193.

75 See e.g. Theodore Eisenberg and Geoffrey Miller, ‘The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues’ (2005) 57 (5) Vanderbilt Law Review 1529;

76 I have analysed the politics of class action reform processes elsewhere and will not repeat it here: Molavi, Collective Access to Justice (n 23).

77 In contrast to Canada, research on Indigenous legal mobilisation in Sweden is relatively sparse. One notable ongoing research project, ‘Litigating land rights in Sápmi: Indigenous legal mobilization in Finland, Norway and Sweden’ by Johan Karlsson Schaffer, Peter Johansson and Camille Parguel, does appear to be contributing towards filling this knowledge gap.

78 See e.g. Per Henrik Lindblom, ‘Sweden’ (2009) 622 The Annals of the American Academy of Political and Social Science 231.

79 There is a possibility for somewhat cumbersome ‘risk agreements’, but these are poor substitutes for traditional contingency fees: Lindblom (n 78) 236.

80 In the consumer context, the European Union recently introduced a Directive on representative actions for the protection of the collective interests of consumers on 25 November 2020 <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020L1828>.

81 Jürgen G Backhaus, Alberto Cassone and Giovanni B Ramello (eds), The Law and Economics of Class Actions in Europe: Lessons from America (Edward Elgar 2012).

82 Linda S Mullenix, ‘Ending Class Actions as We Know Them: Rethinking the American Class Action’ (2014) 64 (2) Emory Law Journal 402.

83 Brian T Fitzpatrick and Randall S Thomas (eds), The Cambridge Handbook of Class Actions: An International Survey (Cambridge University Press 2021).

84 Such volumes are not without their merits as they do collate and offer useful overviews of regimes. But see e.g. Deborah Hensler, Christopher Hodges and Ianika Tzankova (eds), Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation (Edward Elgar 2016).

85 I have recently detailed the sound methodological bases for comparative perspectives in class action research: see Michael Molavi, ‘Contra Giving Wealth a ‘monopoly of justice against poverty’: Comparative Insights on Public Class Action Funding’ (2023) 42 (1) Civil Justice Quarterly 93.

86 Michelle A McKinley, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700 (Cambridge University Press 2016).

87 Whitney Taylor, ‘Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia’ (2018) 52 (2) Law & Society Review 337; Emilio Lehoucq, ‘Legal Threats and the Emergence of Legal Mobilization: Conservative Mobilization in Colombia’ (2020) 46 (2) Law & Social Inquiry 299.

88 Boaventura de Sousa Santos and César A Rodríguez-Garavito (eds), Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge University Press 2009); Verónica Michel and Kathryn Sikkink, ‘Human Rights Prosecutions and the Participation Rights of Victims in Latin America’ (2013) 47 (4) Law & Society Review 873.

89 Tamir Moustafa, ‘Law versus the State: The Judicialization of Politics in Egypt’ (2003) 28 (4) Law & Social Inquiry 883.

90 Annette Schramm, Legal Mobilization in Large-Scale Land Deals: Evidence from Sierra Leone and the Philippines (Nomos 2020).

91 Jeff Handmaker and Thandiwe Matthews, ‘Analysing Legal Mobilisation’s Potential to Secure Equal Access to Socioeconomic Justice in South Africa’ (2019) 36 (6) Development Southern Africa 889.

92 Gerald N Rosenberg, Sudhir Krishnaswamy and Shishir Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (Cambridge University Press 2019).

93 Tom Ginsburg and Tamir Moustafa (eds), Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press 2012).

94 Kathryn Hendley, ‘Mobilizing Law in Contemporary Russia: The Evolution of Disputes over Home Repair Projects’ (2010) 58 (3) The American Journal of Comparative Law 631; F van der Vet, ‘“When They Come for You”: Legal Mobilization in New Authoritarian Russia’ (2018) 52 (2) Law & Society Review 301.

95 Lynette J Chua, Mobilizing Gay Singapore: Rights and Resistance in an Authoritarian State (Temple University Press 2014).

96 Wai Keung Tam, Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong (Cambridge University Press 2013).

97 Lynette J Chua and David Gilbert, ‘Sexual Orientation and Gender Identity Minorities in Transition: LGBT Rights and Activism in Myanmar’ (2015) 37 91) Human Rights Quarterly 1.

98 Kevin J O'Brien and Lianjiang Li, Rightful Resistance in Rural China (Cambridge University Press 2012); Diana Fu, ‘Disguised Collective Action in China’ (2016) 50 (4) Comparative Political Studies 499; Mary E Gallagher, Authoritarian Legality in China: Law, Workers, and the State (Cambridge University Press 2017).

99 These often exhibit forms of methodological nationalism.

100 David Marcus, ‘The History of the Modern Class Action, Part I: Sturm und Drang, 1953–1980’ (2013) 93 (3) Washington University Law Review 587, 592. See also Mullenix (n 84) 406–35.

101 Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press 1991); Epp (n 14).

102 For example, consider the recent US Supreme Court decision attacking reproductive rights: Dobbs v Jackson Women’s Health Organization 597 US (2022).

103 McCann and Lovell (n 10) 366.

104 Gunther Teubner (ed), Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law (De Gruyter 2012).

105 See e.g. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004); F Vibert, The Rise of the Unelected (Cambridge University Press 2007); Richard Ekins, Paul Yowell and NW Barber, Lord Sumption and the Limits of the Law (Bloomsbury 2018); J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books 2019).

106 Jean Comaroff and John Comaroff, Law and Disorder in the Postcolony (University of Chicago Press 2006) 27.

107 Ibid.

108 Lucio Colletti, Early Writings Marx (Penguin 1992).

109 EP Thompson, Whigs and Hunters: The Origin of the Black Act (Allen Lane 1975).

110 JAG Griffith, The Politics of the Judiciary (Fontana 1977).

111 Franz Neumann, The Democratic and The Authoritarian State: Essays in Political and Legal Theory (The Free Press 1957).

112 Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Duke University Press 2002).

113 Ibid.

114 Duncan Kennedy, ‘The Critique of Rights in Critical Legal Studies’ in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Durham: Duke University Press 2002) 178–228.

115 McCann and Lovell (n 10) 366.