The (Un)intended Consequences of Legal Transplants: A Comparative Study of Standing in Collective Litigation in Five Jurisdictions

Deborah R. Hensler has long championed the comparative study of civil procedure in a way that considers the interplay between legal rules, redress mechanisms, legal institutions and the societies where they operate. More importantly, this approach has also revealed the intended and unintended consequences of legal transplantation, and illuminated the difference between the law in the books and the law in action. As Professor Hensler recently and succinctly wrote, “procedures that seem on the surface to be the same or very similar may in practice operate differently as they intersect with other aspects of the litigation regime – rules, cultural expectations, political contexts – in which they are inserted.” In a multi-year book project she led almost a decade ago, Hensler and her colleagues identified the cultural, economic and political forces that impact how a single procedural device – representative litigation – operates in any given jurisdiction. The studies that comprised the project were grounded in empirical data obtained through several research strategies, specially the case study method. National jurisdictions or specific cases within those jurisdictions were used as units of analysis, and as a basis for a broader cross-country comparison that helped identify points of convergence and also key differences.