Judges and Mass Litigation: Revisiting the Judicial Cathedral Through Rational Choice Theory and Behavioural Economics

Abstract

In this paper, we study judicial attitudes and decision-making in mass litigation in the light of social sciences, namely rational choice theory and behavioural economics. These insights offer complementary views that are relevant in times where judges have been assigned increased responsibilities in our societies. We notably argue that even though recent discussions at the European level as well as in several Member-States have urged judges to play ‘prominent’ and ‘leading’ roles when monitoring mass proceedings, a key issue has however often been omitted: are these expectations ultimately realistic? Social sciences tend to nuance the great expectations nowadays shared by many policymakers.

We first discuss the different roles assigned to judges in the context of mass litigation. Then, we study judicial attitudes from the perspective of rational choice theory. A behavioural approach follows and addresses the effects associated with the magnitude of mass disputes on judicial decision-making. Finally, we apply these insights to a mass proceeding, namely the Dutch Collective Settlement of Mass Claim (WCAM).

Keywords: judge, class action, mass litigation, WCAM, rational choice, behavioural economics

JEL Classification: K40, K41