The Collective Interest in Private Dispute Resolution
- *Professor of Law, London School of Economics and Political Science. Email: l.mulcahy{at}lse.ac.uk. I am grateful to the anonymous referees who made some extremely useful comments on a previous draft. Special thanks also go to Carol Harlow, Varda Bondy, Dave Cowan, Conor Gearty, Tom Poole, Jo Braithwaite, Mark Aronson and Stacie Strong.
Abstract
This article considers the relationship between the interests of individual litigants and the facilitation of doctrine for the collective good. More specifically, it examines the extent to which the policy and rules governing the management of civil litigation reflect a genuine commitment to the development of the common law. It is argued that litigation models in England send out conflicting messages about the commitment our society has to nurturing precedents and that we remain ambivalent about whether resources should be directed to identifying cases with precedent-setting potential. Contrary to recent policy statements that encourage disputants to resolve issues in private forums such as mediation, this article concludes that the time is ripe to turn our attention to the equally important issue of how to ensure that certain types of cases reach a public forum.
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