The Disappearing Trial: Retrenchment of Litigation in North America

Abstract

Concerned with the rising rate of litigation and seemingly unchecked litigation abuse, countries, such as the U.S. and Canada, are making changes to their civil justice systems. It is a renewed call for minimizing costs and maximizing efficiency. Through legislative actions as well as judicial decisions both countries have moved towards greater encouragement of alternative dispute resolution and efforts to weigh the cost of the litigation against the value of the litigation, and, in some instances, they have heightened the barriers to the courts by restricting jurisdiction and raising pleading requirements. But has the protection of rights been subsumed by concerns over efficiency and cost containment? This contribution assesses these most recent limits in the United States and Canada—in personal jurisdiction, class actions, discovery, and the effects of upholding arbitration clauses that prohibit collective actions—and their likely effects on access to justice.