Will Aggregate Litigation Come to Europe

This Essay considers Europe's experiment with aggregate litigation in light of American experience. European thinking on the topic appears to have reached consensus on two points: first, aggregate litigation will soon be the norm for Europe; and second, whatever form European aggregate litigation takes, it will not replicate American class action litigation with its domination by entrepreneurial plaintiffs' attorneys. We first examine four sources of dissatisfaction with the class action to assess which are meritorious, which are ill-founded, and which derive from a deeper debate over whether or not there should be private legal accountability for consumer claims. Drawing on America's long history of collective enforcement, we then ask whether Europe will adopt the incentives and institutional arrangements necessary to make aggregate litigation an effective remedy. Our concern is that Europe's revulsion at accepting the reality of legal enforcement as an entrepreneurial activity may leave the incipient reforms without the necessary agents of implementation. The current wave of deregulation and market liberalization in Europe has had major repercussions for the prospect of litigated forms of collective redress. Once decried as the perversity of rapacious Americans, class actions are now the focus of significant reform efforts in many European countries and even at the level of the European Union. There are, no doubt, many reasons for the relatively sudden attention to means of collective redress. Some have to do with the need to create effective ex post accountability mechanisms to contain the potential adverse effects of goods and services freely entering the market. Others seek to create mechanisms for efficient resolution of the numerous intertwined claims that invariably arise from the mass production and delivery of goods and services across a broad market. One should not gainsay the significance of these reform measures. All represent efforts to mobilize means of private enforcement to prevent harm through the prospect of civil litigation. For countries steeped in the civil law tradition, the move away from centralized public enforcement is a sea change in legal structures. The marriage of private enforcement mechanisms and relaxed barriers to entry into increasingly deregulated markets is a significant change as well. Add to that the diversity of litigation tools that are being developed and one would have to be almost churlish not to marvel at the liberalizing spirit sweeping the continent. And, yet, one need spend only a few minutes in conversations with European reformers before the proverbial "but" enters the discourse: "But, of course, we shall not have American-style class actions." At this point, all participants nod sagely, confident that collective actions, representative actions, group actions, and a host of other aggregative arrangements can bring all the benefits of fair and efficient resolution to disputes without the dreaded world of American entrepreneurial lawyering. And no doubt the American entrepreneurial ways must and will be resisted fully, in much the same way that Europe has held off the unwelcome presence of McDonald's or Starbucks in its elegant piazzas. To this dignified and self-assured conversation we bring a simple but unwelcome question: Really? We develop this Essay in two parts. First, we must acknowledge that the aversion to the American- style class action corresponds to sustained critiques of class actions in the United States as well. A number of American reforms, from revisions to the class action provisions of the Federal Rules of Civil Procedure to the Class Action Fairness Act, have taken aim at some of the misfirings of class actions. Some Supreme Court decisions, most notably Amchem Products, Inc. v. Windsor1 and Ortiz v. Fibreboard Corp.,2 have burdened class actions with procedural strictures that have limited the class action as an effective vehicle for resolution of mass personal injuries. …