Electronic Thesis and Dissertation Repository


Master of Laws




Professor Stephen GA Pitel


Class actions cases illuminate the theoretical underpinnings of private law in a way that traditional two-party litigation does not. Many class actions deal with plaintiffs who have not suffered a large loss (or a quantifiable monetary loss at all), or the defendant has made profits that are disproportionately greater than the plaintiffs’ compensable loss (if any). Applying orthodox principles of private law and negligence to these cases results in barring plaintiffs from recovery despite their rights being violated and defendants not disgorging profits made from wrongdoing. The solution resolving these dilemmas should not be to create separate law only applicable to class actions. Rather, the traditional interpretations of damage and disgorgement must be reconsidered generally. By refocusing on a view of negligence as serving to vindicate litigants’ rights and reconsidering orthodox principles, class actions dilemmas can be resolved in a way that is consistent with, and clarifies, the private law.

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