Legal tradition as an obstacle: Europe's difficult journey to class action

Global Jurist

Volumn 10, Issue 2, 2010, Pages

  Valguarnera, Filippo ^a  

^a ÖREBRO UNIVERSITY   (Sweden)

Author keywords

class action; coordinate ideal; cy pres; ex ante regulation; France; Germany; hierarchical ideal; Italy; legal profession; Netherlands; Norway; opt in; opt out; Sweden

Indexed keywords

EID: 79551587798     PISSN: None     EISSN: 19342640     Source Type: Journal    
DOI: 10.2202/1934-2640.1362     Document Type: Article

References (167)

1. Memorandum from the European Commission: Consumer Redress COM(84) 692, 12-12-1984.
2. For the EU approach to aggregate litigation see C. Hodges, Global Class Actions Project-Sum mary of European Union Developments, http:// globalclassactions.stanford.edu/PDF/EU-Report-on%20Developments-EU-and-UK- Nov%2008.pdf (2008).
3. Directive 93/13/EEC, Article 7: "1. Member States shall ensure that, in the interests of consum ers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers."
4. Directive 84/450/EEC, Article 4.1: "Member States shall ensure that adequate and effective means exist for the control of misleading advertising in the interests of consumers as well as com petitors and the general public. Such means shall include legal provisions under which persons or organizations regarded under national law as having a legitimate interest in prohibiting misleading advertising may: Take legal action against such advertising; and/or Bring such advertising before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings. (...)".
5. According to Directive 98/27/EC Article 3, a "qualified entity" is any body or organization which, being properly constituted according to the law of a Member State, has a legitimate interest in ensuring the enforcement of the provisions of Member States related to the protection of the collective interests of consumers.
6. Of considerable interest is, for instance, the contribution of the Italian legal scholar Mauro Cap-pelletti (Florence and Stanford), founding father of the so-called "access to justice" movement. Cappelletti-using a metaphor destined to become famous-described access to justice as a movement consisting of three consecutive "waves". The first wave involved the reform of national legal aid systems, institutions aimed at facilitating access to legal services for the poor; the second wave sought to protect diffused and fragmented interests such as those of consumers and the envi ronment; the third wave intended to explore the alternatives to ordinary civil litigation, like arbi tration and mediation. In this context, class action was seen as an interesting tool to deal with the second wave, the protection of diffused and fragmented interests. See for instance M. Cappelletti, B. Garth, Access to Justice and the Welfare State: An Introduction, in M. Cappelletti (Ed.), Access to Justice and the Welfare State, Alphen aan den Rijn, Sijthoff, 1981, 11-20. The Swedish scholar Per Henrik Lindblom later picked up on this theme in a very influential book which started the class action debate in Scandinavia. See P.H. Lindblom, Grupptalan-Det anglo-amerikanska class actioninstitutet ur svenskt perspektiv, Stockholm, Norsteds Juridik, 1989, 3-19.
7. The need for group action devices has also been underlined by the general decline in the last fif teen years of welfare programs in most European countries. Many social issues that once were solved by state intervention are now left to the judicial system. Moreover, many legal aid pro grams have been curtailed as well, exposing the weakness of individual "one shot litigants". See E. Sherman, Group Litigation Under Foreign Legal Systems: Variations and Alternatives to American Class Actions, 52 DEPAUL L. REV. 401, 401-402 (2002).
8. Significant exceptions are the Scandinavian countries. For a brief discussion see infra section 1.
9. See R.B. Capalli, C. Consolo, Class Actions for Continental Europe? A Preliminary Inquiry, 6 TEMP. INT'L & COMP. L.J. 217, 219 (1992).
10. See M. Damaška, The Faces of Justice and State Authority, New Haven and London, Yale Uni versity Press, 1986.
11. Updated reports on collective litigation in a large number of countries can be found at: http://globalclassactions.stanford.edu/
12. There are both federal and state class actions. In this paper I will take into consideration only the federal ones, governed by Rule 23 of the Federal Rules of Civil Procedure. The reason is twofold. First, the state class actions, more often than not, resemble their federal counterpart. Second, the Class Action Fairness Act 2005 has "federalized" many class actions that previously would have been litigated in front of state courts.
13. In other words, the court must "certify" the class action, deciding if all the Rule 23(a) prerequi sites have been met. In theory the court at this stage must not consider the merits of the claim per se. The dividing line, however, is often very thin. For instance, a court which needs to determine the existence of a predominant common issue could go beyond the mere pleadings and consider at least some of the substantive issues involved. The issue is analyzed in G.P. Miller, Review of the Merits in Class Action Certification, 33 HOFSTRA L. REV. 51 (2004).
14. See N.M. Pace, Class Actions in the United States of America: An Overview of the Process and the Empirical Literature, http://www.law.stanford.edu/ library/globalclassaction/PDF/USA-National-Report.pdf (2007), 6-7.
15. Ibid., 7.
16. http://www.law.stanford.edu/library/globalclassaction/PDF/ USA-National-Report.pdf.
17. http://www.law.stanford.edu/library/globalclassaction/PDF/ USA-National-Report.pdf, 9.
18. Ibid., 9-10.
19. While notice is not required, the courts still have the possibility to order it. See Rule 23(c)(2)(A).
20. See N.M. Pace, Class Actions in the United States of America: An Overview of the Process and the Empirical Literature, supra note 14, 11-24.
21. th Cir. 2006).
22. See M.H. Redish, C.W. Berlow, The Class Action as Political Theory, 85 WASH. U. L. REV. 753, 761 (2007). The court, according to Rule 23(b)(3) must take into account the following fac tors: "(A) the interest of members of the class in individually controlling the prosecution or de fense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action."
23. 417 U.S. 156 (1974).
24. The following account is largely based on D. Baetge, Group Litigation & Other Forms of Col lective Litigation. Germany, http://www.law.stanford. edu/library/globalclassaction/PDF/Germany-National-Report.pdf (2007).
25. Ibid., 4.
26. Ibid., 5.
27. § 2.
28. See § 10 of the Unfair Competition Act (UWG).
29. See D. Baetge, Group Litigation & Other Forms of Collective Litigation. Germany, supra note 24, p. 16.
30. In fact, KapMuG is the legislative reaction to the famous Deutsche Telekom case, when thou sands of investors, between 2001 and 2003, sued the company accusing it of an overestimation of its value in two offering prospectuses. The sheer number of plaintiffs paralyzed the Frankfurt Dis trict Court for years. See A. Stadler, A test case in Germany: 16 000 private investors vs. Deutsche Telekom, 10 ERA-FORUM 37 (2009), presented in Florence at the conference "Collective Redress-Towards a System of Class Actions in Europe?" organized by the Academy of European Law Trier, 30-31 October, 2008.
31. The following account is largely based on V. Magnier, Class Actions, Group Litigation & Other Forms of Collective Litigation. France, http://www.law.stanford.edu/library/globalclassaction/PDF/France-National- Report.pdf (2007).
32. See also L. Cadiet, Vers un système d'actions de groupe en Europe? L'état des lieux en France, 10 ERA-FORUM 52 (2009), presented in 2008 at the ERA conference in Florence.
33. Ibid., 5.
34. Art. L. 421-1 of the Consumer Code.
35. Article L. 1114-2 of the Public Health Code and L. 142-2 of the Environment Code.
36. Article L. 452-2 of the Monetary and Financial Code.
37. For an overview of the Italian developments see E. Silvestri, The Globalization of Class Actions-Italian Report, http://www.law.stanford.edu/ library/globalclassaction/PDF/Italian-National-Report.pdf (2007)
38. E. Silvestri, The Italian 'Collective Action for Damages': An Update, http://www.law.stanford.edu/library/globalclassaction/PDF/Italian-Collective- Action-for-Damages.pdf (2008)
39. and A. Giussani, Enter the Damage Class Action in European Law: Heading towards Justice on a Bus, 28 CIV. JUST. Q. 132 (2009).
40. Legge 23 luglio 2009 n. 99, Article 49.
41. Exceptions to this tendency are the actions brought by German or French associations on behalf of the collective interest of the consumers. If the court issues an order against a business to cease an illegal practice, all consumers benefit from it.
42. Interest in the topic was triggered by Professor Per Henrik Lindblom's book Grupptalan: det anglo-amerikanska class action institutet ur svenskt perspektiv, supra note 6.
43. For a description of the work carried out by the Lindblom Commission and of the Swedish group actions see R. Nordh, Group Actions in Sweden: Reflections on the Purpose of Civil Litiga tion, the Need for Reforms, and a Forthcoming Proposal, 11 DUKE J. COMP. & INT'L L. 381, 395-402 (2001)
44. and P.H. Lindblom, National Report: Group Litigation in Sweden, http://globalclassactions.stanford.edu/PDF/Sweden-National-Report.pdf (2007).
45. For a more extensive account see P.H. Lindblom, Grupptalan i Sverige: bakgrund och kommentarer till lagen om grupprättegång, Stockholm, Norstedts Juridik, 2008, 91-108.
46. See also P.H. Lindblom, Group Litigation in Scandinavia, 10 ERA FORUM 7 (2009), presented in 2008 at the ERA conference in Florence, forthcoming on Zeitschrift für Zivilprozess International.
47. See Norsk Retstidende 1914, 419.
48. Code of Civil Procedure (Tvisteloven) § 35-7.
49. Administration of Justice Act § 254 e(8) and § 254 c.
50. While René David consider the Scandinavian legal systems as a part of the wide Roman-Germanic legal family (see R. David, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law, London, Stevens, 1985, 33-34)
51. Konrad Zweigert and Hein Kötz (An Introduction to Comparative Law, Oxford, Clarendon Press, 1998, 276)
52. as well as Pierre Arminjon, Boris Nolde and Martin Wolff (Traité de droit comparé, Paris, R. Pichon et Durand-Auzias, 1950, 47) consider them an autonomous legal family. The latter opinion is justified by several factors that isolate the Scandinavian legal tradition from the rest of the continent. The most relevant among those are: a) the absence of codifications in the French-German sense of the word; b) a very high historic continuity not determined, as in the common law, by the work of the courts but by a legislative tradition whose style and main features date back to the medieval age; c) the late appearance of doctrine as a relevant contributor to the legal system.
53. These aspects are treated in A. Simoni, F. Valguarnera, La tradizione giuridica dei Paesi nordici, Torino, Giappichelli, 2008.
54. The work of Scandinavian scholars on the functions of civil litigation is indeed remarkable. The author who most developed this line of research was late Professor Per Olof Ekelöf, who dis cussed the conflict-solving and the behaviour-modifying functions. See for instance P.O. Ekelöf, R. Boman, Rättegång I, Stockholm, Norstedts Juridik, 1997, 7-22. Most recently, the functions of civil procedure, especially with reference to group actions, have been analyzed by Professor Per Henrik Lindblom. See P.H. Lindblom, Grupptalan-Det anglo-amerikanska class actioninstitutet ur svenskt perspektiv, supra note 6, 435-65
55. P.H. Lindblom, Group Actions and the Role of the Courts-A European Perspective, The Hague, Kluwer Law International, 1997
56. and P.H. Lind-blom, The Growing Role of the Courts and the New Functions of Judicial Process-Fact or Flummery?, 51 SCAND. STUD. LAW. 281, 299-307 (2007). Surprisingly, American scholars have not spent a comparable amount of time discussing the functions of civil litigation in explicit terms.
57. One of the very few articles dealing with the issue is K. Scott, Two Models of the Civil Process, 27 STAN. L. REV. 937 (1975). The functions of civil litigation have, however, been dealt with at least indirectly in the works which analyze the role of the judge.
58. See for instance A. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976). In the more specific class action setting the role of civil litigation has been analyzed more deeply, with particular reference to the division between the compensatory function and deterrence.
59. See for instance M. Gilles, G.B. Friedman, Exploding the Class Action Agency Costs Myth: the Social Utility of Entrepreneurial Lawyers, 155 U. PA. L. 103 (2006).
60. See infra section 2.
61. See A. Chayes, The Role of the Judge in Public Law Litigation, supra note 45, 1282.
62. This does not mean that the Scandinavian countries will be completely neglected. Some of the points that will be made in the following pages apply also to them. For example, it is of signifi cance, as we will see, that the Danish legislator allows opt-out actions only when the group is rep resented by a public authority.
63. Law 83/95 of August 31, 1995. A more detailed account about the Portuguese "popular action" can be found in H. Sousa Antunes, Class Actions, Group Litigation & Other Forms of Collective Actions (Portuguese Report), http://www.law.stanford.edu/library/globalclassaction/PDF/Portugal- National-Report.pdf (2007)
64. and in Civic Consulting, Evaluation of the effectiveness and efficiency of collective redress mechanisms in the European Union-country report Portugal, http://ec.europa.eu/consumers/redress-cons/pt-country-report-final.pdf.
65. Law 83/95 Article 15. See also H. Sousa Antunes, Class Actions, Group Litigation & Other Forms of Collective Actions (Portuguese Report), supra note 49, 20.
66. Ibid., 14.
67. See Civic Consulting, Evaluation of the effectiveness and efficiency of collective redress mecha nisms in the European Union-country report Portugal, supra note 49, 2.
68. For more details about collective redress in the Netherlands see I.N. Tzankova, Class Actions, Group Litigation and Other Forms of Collective Litigation-Dutch Report, http://www.law.stanford.edu/library/globalclassaction/ PDF/Netherlands-National-Report.pdf
69. and Civic Consulting, Evaluation of the effectiveness and efficiency of collective redress mechanisms in the European Union-country-report the Netherlands, http://ec.europa.eu/consumers/redress-cons/nl-country-report-final. pdf.
70. I.N. Tzankova, Class Actions, Group Litigation and Other Forms of Collective Litigation-Dutch Report, supra note 53, 7.
71. Ibid., 10.
72. Ibid., 2.
73. Ibid., 4.
74. Civic Consulting, Evaluation of the effectiveness and efficiency of collective redress mecha nisms in the European Union-country-report the Netherlands, supra note 53, 3.
75. Ibid., 4.
76. Ibid., 5.
77. I.N. Tzankova, Class Actions, Group Litigation and Other Forms of Collective Litigation-Dutch Report, supra note 53, 4.
78. See M. Damaška, The Faces of Justice and State Authority, supra note 10.
79. Ibid., 17.
80. Ibid., 19, 27.
81. Ibid., 24.
82. Ibid., 19, 27.
83. Ibid., 27.
84. Ibid., 29-46.
85. One objection has to be addressed immediately. It is true that no-one could seriously deny the important role played by the French or German courts in many strategic areas of the law, as for instance tort law. It is equally undeniable, however, that the widespread perception of the role of the courts in civil law countries still is aligned with the French revolutionary ideal of the judge as a mere "bouche de la loi" (mouth of the written law). This perception, while often undermined in practice, is never openly defied by the judges themselves. This attitude is reflected in the judicial review mechanisms. Most Continental countries refuse to assign this task to the courts themselves and prefer to entrust a specific organ that can be judicial in nature (as the German or Italian consti tutional courts) or political (as the French Conseil Constitutionel). Others, for example Sweden or Norway, while entrusting the courts with the power to control the constitutionality of parliamen tary Acts, provide severe formal or informal restraints, so that judicial review is in practice exer cised very parsimoniously.
86. According to a study the entry into the market requires 4 different procedures in the United States, 15 in France and 16 in Italy. See S. Djankov, R. La Porta, F. Lopez-De-Silanes, A. Schleifer, The Regulation of Entry, 117 Q. J. ECON. 1, 18-21 (2002).
87. The analytical need to provide wide generalizations should not let us forget that the US legal system is not perfectly uniform. There are areas of the market which closely resemble the Euro pean ex ante regulation. This is the case when the products, in case of wrongdoings, could cause massive and widespread harm. The FDA (Food and Drug Administration), for instance, is a fed eral agency which focus on ex ante regulation. See S. Issacharoff, Regulating After the Fact, 56 DEPAUL L. REV. 375, 378.
88. Ibid., 377. Much has been written about the advantages and disadvantages of ex ante and ex post regulation. The first offers greater predictability, while the latter guarantees higher flexibility.
89. See for instance D. Wittman, Prior Regulation Versus Post Liability: The Choice Between Input and Output Monitoring, 6 J. LEGAL STUD. 357 (1984)
90. C.D. Kolstad et al., Ex Post Liability for Harm Versus Ex Ante Safety Regulation: Substitutes or Complements?, 80 AM. ECON. REV. 888 (1990)
91. and E. Chamblee Burch, Securities Class Actions as Pragmatic Ex Post Regulation, 43 GA. L. REV. 63 (2008).
92. The strict separation between the legislative power and the judiciary in the civil law tradition emerges with clarity if one recalls the original functioning of the "Tribunal de Cassation", the forefather of the French Court of Cassation. The Tribunal's task was to ensure that the courts did not deviate from the text of the laws, as even construction of statutes was considered a potential violation of the separation of powers. The courts were allowed to refer doubtful questions of inter pretation to the Tribunal ("réferé facultatif"). The Tribunal, not being considered part of the court system but rather an assistant of the legislature, could not decide the case on the merits but only quash the decision of the court because of a violation of the law. The court was not bound by the interpretation of the Tribunal de Cassation and was allowed to decide the case according to its original interpretation of the law. However, if the ruling was questioned again, the Tribunal had to refer the issue to the legislature itself for the final solution. This baroque system was soon aban doned for obvious practical reasons. See K. Zweigert, H. Kötz, An Introduction to Comparative Law, supra note 44, 119-20. While the Tribunal de Cassation must certainly be considered a rather extreme example of distrust towards the lawmaking activity of the courts, it is nonetheless revealing of a mentality that is deeply rooted in the civil law tradition.
93. See G. Calabresi, A Common Law for the Age of Statutes, Cambridge Mass., Harvard University Press, 1982.
94. See S. Issacharoff, Regulating After the Fact, supra note 71, 384 and N.Y. Agric. & Mkts. Law § 258-b(3)-(6).
95. Ibid., 380.
96. The communicative functions of civil litigation, especially with reference to group actions, have been analyzed by Professor Per Henrik Lindblom. See P.H. Lindblom, Grupptalan i Sverige, su pra note 40, 174
97. and P.H. Lindblom, The Growing Role of the Courts and the New Functions of Judicial Process-Fact or Flummery?, supra note 45, 302-307.
98. These themes have been explored mostly in the field of criminal justice. See for instance M.S. King, Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Jus tice, 32 MELB. U. L. REV. 1096 (2008).
99. This aspect has been analyzed in the American legal literature mostly through the lens of the so-called "public interest litigation". See for instance L. Epstein, C.K. Rowland, Debunking the Myth of Interest Group Invincibility in the Courts, 85 AM. POL. SCI. REV. 205 (1991)
100. J. Spriggs, P. Wahlbeck, Amicus Curiae and the Role of Information at the Supreme Court, 50 POLITICAL RESEARCH QUARTERLY 365 (1997)
101. and C.R. Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective, Chicago, Chicago University Press, 1998. In this paper the theme is further touched upon in section 3, discussing the so-called "private attorney general".
102. It has been observed, for instance, that the United States Supreme Court's rulings are generally aligned to public opinion. A good example of this tendency is provided by the refusal of a quite conservative court to overrule Roe v. Wade (410 U.S. 113 (1973)). See Planned Parenthood v. Casey, 505 U.S. 833 (1992). See also M. Comiskey, The Rehnquist Court and American Values, 77 JUDICATURE 261 (1994)
103. and W. Mishler, R.S. Sheehan, The Supreme Court as a Counter-Majoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. SC. REV. 87 (1993).
104. The term was used by the U.S. Supreme Court for the first time in a dissenting opinion by Jus tice Douglas in FCC v. Nat'l Broad. C., Inc., 319 U.S. 239, 265 n. 1 (1943), quoting Judge Jerome Frank in Assoc. Indus. of New York v. Ickes, 134 F.2d 694 (2 Cir. 1943). For an interesting account about the development and the shifting fortunes of the private attorney general notion see J.A. Rabkin, The Secret Life of the Private Attorney General, 61 LAW AND CONTEMP. PROBS. 179 (1998).
105. See W.B. Rubenstein, On What A "Private Attorney General" Is-And Why It Matters, 57 VAND. L. REV. 2129, 2131 (2004).
106. Ibid., 2130.
107. See J.A. Rabkin, The Secret Life of the Private Attorney General, supra note 81, 195.
108. The cy pres doctrine was invented by the English equity courts to solve cases where the original purpose of a charitable trust was illegal or had otherwise failed. The judge could then direct the money to a use "as near as possible" ("cy pres comme possible" in Norman French). In the field of class actions the cy pres doctrine is used to distribute the unclaimed portions of a fund, allowing the court to give the money to a third party. Courts have so far claimed great discretion in deter mining who is eligible to benefit from a cy pres ruling. See K.M. Forde, What Can a Court Do with Leftover Class Action Funds? Almost Anything!, 35 JUDGES J. 19 (1996).
109. See W.B. Rubenstein, On What A "Private Attorney General" Is-And Why It Matters, supra note 82, 2161.
110. Ibid., 2161.
111. One of the most obvious examples of this American peculiarity is the so-called Independent Counsel, an attorney with a private practice who is appointed by Congress in order to investigate criminal misconduct by high executive officials, including the President of the United States. This institution was introduced by the Ethics in Government Act in the aftermath of the Watergate scandal. The most famous example of Independent Counsel in relatively recent times is Kenneth Starr, who investigated President Clinton for the Lewinsky scandal. See J.A. Rabkin, The Secret Life of the Private Attorney General, supra note 81, 180-181.
112. On the class action as a device for private enforcement see also N. Trocker, Class action negli USA-e in Europa?, 1 CONTRATTO ED IMPRESA 178, 183 (2009).
113. See S. Issacharoff, Regulating After the Fact, supra note 71, 381.
114. See H.E. Jackson, Variation in the Intensity of Financial Regulation: Preliminary Evidence and Potential Implications, 24 YALE J. ON REG. 101, 280-281 (2005).
115. The capacity of group actions to attract media attention has been well expressed by Steve Hed-ley with reference to mass personal injuries: "Each profession has its mysteries, and journalists are as insistent on the mystery of which stories have news value as any lawyer ever is about the mys teries of the law. Individual plaintiffs are usually too inconspicuous; yet how can a faceless group of plaintiffs have human interest? The large number of injuries that take place every year has a very low media profile, and articles on them tend to be rather remote accounts of reports on the matter. Yet, surprisingly group actions seem to overcome this hurdle; a paradox neatly summed up in the remark that 'Drinking and driving is the equivalent of a King's Cross [disaster] every fort night'. The existence of the group of litigants makes it worthwhile for their lawyer to contact the press; the press manages to present the plaintiffs not as a group, but as individuals whose fate is worth narrating." See S. Hedley, Group personal injury and public opinion, 14 LEGAL STUD. 70, 83 (1994). Of course, the press coverage of large group actions is not triggered solely by interest ing personal stories, but also by the "discovery" of previously underestimated or ignored social problems.
116. The American "entrepreneurial lawyer" will be more thoroughly analyzed in section 4.
117. Of course, while I believe the distribution of powers to be the overarching explanation behind the European hostility to a broad field of potential representative plaintiffs, other rationales can also be found. Many of these have been described and analyzed in a recent article by Professors Samuel Issacharoff and Geoffrey Miller. To limit the lead plaintiff role to organizations can, at least as intended by many European legislators, guarantee loyal and competent representation. Secondly, the preference for consumer and environmental associations may ensure that the lead plaintiff has enough resources to pay the costs of the proceedings and, eventually, also the costs of the defendant should she (the plaintiff) lose the case (according to loser-pays rules common in most European countries). Thirdly, the preference for consumer and environmental associations can perhaps limit the emergence of the American-style entrepreneurial attorneys by putting the legal counsel under the control of a strong and experienced lead plaintiff. See S. Issacharoff, G.P. Miller, Will Aggregate Litigation Come to Europe?, 62 VAND. L. REV. 179, 192-197 (2008).
118. The differences between Europe and the United States have been described by Professor Mich-ele Taruffo in more genuinely cultural terms as a distinction between two types of individualism. "Altruistic individualism" emerges when individuals litigate not only for their personal interests but also for the advantage of other similarly situated subjects (private attorney general). Its opposite is "egoistic individualism", which pushes individuals to litigate only for a personal advantage, unwilling to spend time and resources for the sake of others. According to Professor Taruffo, this second type of individualism, and the correlated tendency of ascribing to "someone else" the task of dealing with super-individual problems, has led to the growing importance of supranational organizations (such as the European Union) that are also active in the field of collective litigation and to the emergence of associations pursuing super-individual goals. The latter, however, as far as litigation goes, need the approval of a public authority. See M. Taruffo, Some Remarks on Group Litigation in Comparative Perspective, 11 DUKE J. COMP. & INT'L L. 405, 417-20 (2001).
119. For a survey of the solutions adopted in the EU member states, as well as a strong pleading for opt-out see R. Mulheron, The Case for an Opt-Out Class Action for European Member States: A Legal and Empirical Analysis, 15 COLUM. J. EUR. L. 409 (2009).
120. The tendency of the average class member to stay passive has been empirically proved by a study conducted by Professors Theodore Eisenberg and Geoffrey Miller. According to their analy sis of hundreds of American cases from 1993 to 2003 in which quantitative information could be ascertained, the mean opt-out rate for all types of class actions was 0.6%. In consumer cases the rate was as low as 0.2%. See T. Eisenberg, G. Miller, The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues, 57 VAND. L. REV. 1529, 1546-49 (2004).
121. See M.J. Klarman, Brown v. Board of Education and the Civil Rights Movement, New York, Oxford University Press, 2007, 27.
122. 347 U.S. 483 (1954). It should be kept in mind that Brown v. Board of Education marked an important milestone in American legal history not only for the merits of the case, but also because it opened the doors to litigation as a tool for social change. The New Deal enthusiasts in the 1930s saw the executive branch as a much more likely tool for reform. Litigation had instead the goal of protecting social advancements achieved through the legislation from courts eager to declare them unconstitutional. See S.C. Yeazell, Brown, the Civil Rights Movement, and the Silent Litigation Revolution, 57 VAND. L. REV.1975 (2004).
123. 321 U.S. 649 (1944).
124. See S.C. Yeazell, From Medieval Group Litigation to the Modern Class Action, New Haven and London, Yale University Press, 1987, 238-249.
125. The US Supreme Court itself has recognized the role of litigation as an alternative to the legis lative process. In 1963, only three years before the Rule 23 reform, the Court wrote: "Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts (...). Under the conditions of modern government, litigation may be the sole practicable avenue open to a minority to petition for redress of grievances." NAACP v. Button, 371 US 415, 429-30 (1963).
126. The role of the judiciary is clearly reflected in the ways judges are recruited in the United State, which are always, in a way or in another, political. The clearest example is certainly provided by the states, as for instance California, where judges are elected by the people. While this system leaves much to be desired when it comes to judicial independence, it is also clearly the result of a legal culture which recognizes the important role played by the personality of the judge, her cul tural background and political inclinations. The same thing could be argued for judges that are selected by the executive branch, at state or federal level. If the judge was perceived merely as a dull bureaucrat, with only the rather mechanical task of applying the law to a given case, it would make very little sense for her appointment to be made by a political representative. The judicial policymaking is also underlined by the high visibility given to the judge as an individual. She is not simply an anonymous member of a larger entity, as in continental Europe, but is entitled to express a personal opinion dissenting from the majority. See B.A. Smith, Selecting Judges in the 21st Century, 30 CAP. U. L. REV. 437 (2002).
127. Empirical research has shown a rapid increase in the involvement of interest groups in litiga tion since 1966. One of the first studies in the field was conducted by Nathan Hakman, examining group involvement in US Supreme Court cases from 1928-1966. He found that the presence of interest groups was very modest, and declared group involvement in litigation to be the exception rather than the rule. See N. Hakman, Lobbying the Supreme Court, 35 FORDHAM L. REV. 15 (1966).
128. Research conducted in the following decades shows, however, a very different trend. For instance, an article by Professor Lee Epstein shows how the number of amicus curiae briefs to the US Supreme Court has radically increased since the end of the 1960s, reaching a peak during the Rehnquist Court era. Of all full opinion cases from 1986 to 1990, 84.4 percent contained at least one amicus curiae brief, compared to the 28.6 percent during the Warren Court era. See L. Epstein, Interest Groups Litigation During the Rehnquist Court Era, 9 J.L. & POL. 645 (1993).
129. A distinction between mandatory and opt-out class actions is however necessary. A mandatory class action seeks injunctive relief. Its goal is to change the defendant's behavior, not to obtain monetary compensation. The personal motivations behind this kind of action are often idealistic or "political". The plaintiff is not primarily seeking personal gain; she is in court to defend a princi ple. She is therefore more interested in a court decision, which is public and can establish a bind ing precedent if it climbs the judicial hierarchy, rather than in a settlement. This could be true for opt-out class actions as well, as when a group of people seeks redress for their relatives' death caused by a defective product. The plaintiff could be driven more by the desire to obtain "justice" publicly, or to change the law, than by the mere monetary compensation. However, the large ma jority of opt-out cases end with a settlement. The courts then become an important arena in order to reach an agreement, but are deprived of the power to actually decide the case.
130. In the words of Judith Resnik: "By the 1960s, lawyers, judges, academics and legislators began to conceive of civil justice as having characteristics readily associated with criminal justice and administrative systems: that it had the potential to serve as a venue for enforcement of public norms, and that, given other efforts to provide subsidies aimed at providing a small measure of redistribution towards the very poor, market intervention might also be appropriate within the civil justice system". See J. Resnik, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 U. PA. L. REV. 2119, 2144-45 (2000).
131. As stated in the Introduction, a comparison between England and the United States in the field of group litigation requires a different set of analytical tools-more genuinely "cultural"-than those used in this paper. What follows is therefore only a very brief sketch of the issue, which de serves to be widened in another occasion.
132. The most cited case is Brown v. Vermuden, 22 Eng. Rep. 796 (Ch. 1676). The case involved a parish of miners and their parson, who claimed customary rights on a tenth of the mined ore. The parson had sued the entire parish, which had named four representatives. According to Professor Stephen Yeazell, however, the group litigation has much deeper roots, emerging as early as in the twelfth century. See S.C. Yeazell, From Medieval Group Litigation to the Modern Class Action, supra note 101, 100 and 133-137.
133. Ibid., 166-197.
134. The English legal system comprises two main forms of group litigation devices: a) a non-representative device that can be applied to any types of claim, the so called Group Litigation Or der (GLO) and b) several representative devices that can be applied for well defined subject mat ters, such as collective actions for the enforcement of consumer interests. For details see among others C. Hodges, Global Class Action Project-Country Reports: England and Wales, http://globalclassactions.stanford.edu/PDF/England-Legislation.pdf.
135. On the topic see D. Roberts, Paternalism in Early Victorian England, New Brunswick, N.J., Rutgers Univ. Press, 1979.
136. See K. Zweigert, H. Kötz, An Introduction to Comparative Law, supra note 44, 212-217.
137. US Constitution, Article II, Section 1.
138. This is, of course, the classical and frequently quoted thesis of Alexis de Tocqueville, accord ing to whom "there is hardly a political question in the United States that does not sooner or later turn into a judicial one". See. A. De Tocqueville, The Democracy in America: And Two Essays on America, London, Penguin, 2002, 315.
139. The statement, as observed by a few commentators (see for instance M.A. Graber, Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited, 21 CONST. COMMENT. 485 (2004)), is certainly exagerated, as most political questions in the United States are solved outside the courthouse. It is nonetheless beyond doubt that the Ameri can courts deal with political issues to an extent unknown to the European legal systems.
140. There is no doubt that the continental European courts have greatly contributed to the evolution of their legal systems. However, there is no common acceptance of the policymaking role of the courts in the European environment. Stephen Yeazell, discussing the impact of the Brown case on the American legal culture, has written that "Brown and the civil rights movement helped create a renewed belief, not just in the law, but more specifically in litigation as a noble calling and as an avenue for social change" (see S.C. Yeazell, Brown, the Civil Rights Movement, and the Silent Litigation Revolution, supra note 99, 1976). Such a statement could never be written by a Euro pean scholar about her own legal system. While case law plays a significant role in many legal fields, litigation is certainly not perceived as an "avenue for social change". As a consequence, the European legal environment has nothing similar to the American "civil rights lawyer", an individ ual that merges idealism and professional skill in order to promote a cause in the courtrooms.
141. On the European preference for opt-in see also N. Trocker, Class action negli USA-e in Europa?, supra note 89, 218-220.
142. The idea is not new and it has been advocated in England and South Africa (see R. Mulheron, The Class Action in Common Law Legal Systems, Oxford-Portland, Or., Hart Publishing, 2004, 33-34). However, as far as I know, it has been enacted for the first time in Norway.
143. See S.J. Choi, L.J. Silberman, Transnational Litigation and Global Securities Class-Action Lawsuits, 2009 WIS. L. REV. 465, 480
144. and H.L. Buxbaum, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, 46 COLUM. J. TRANSNAT'L L. 14, 31-33 (2007-2008).
145. 242 F.R.D. 76, 81 (S.D.N.Y. 2007).
146. See .J. Choi, L.J. Silberman, Transnational Litigation and Global Securities Class-Action Law suits, supra note 118, 466.
147. 242 F.R.D. 76, 95 (S.D.N.Y. 2007).
148. The issue, however, has been addressed by the French Conseil Constitutionel in a 1989 case concerning precisely the standing to sue of trade unions. According to the Conseil Constitutionel an employee involved in a group action must be "afforded the opportunity to give his assent with full knowledge of the facts and that he remained free to conduct personally the defence of his in terests". Moreover, "the employee concerned must be informed by registered letter with a form of acknowledgement of receipt in order that he may, if he desires so, object to the trade union's ini tiative". See Dec. Cons. Const. N. 89-257 DC, July 25th 1989, spec., pt 24-25 and Civic Consult ing, Evaluation of the effectiveness and efficiency of collective redress mechanisms in the Euro pean Union-country report France, http://ec.europa.eu/consumers/redress-cons/fr-country-report-final.pdf, 2.
149. See 242 F.R.D. 76, 95-102.
150. Other methods for calculating the lawyer's fees in class actions have indeed been elaborated. The most notable is certainly the so called "lodestar" method. According to this system the court would calculate the amount of hours reasonably spent by the legal counsel on the case, multiply it by a reasonable hourly rate and then by a multiplier representing the risk undertaken by the attor ney. For instance, a $300,000 lodestar could be multiplied by a risk factor of 2 resulting in a fee of $600,000. The major problem with this method was that it put in place incentives for the law firms to spend more time and man power than necessary on the cases. See D. Christopher Wells, Report on Contingent Fees in Class Action Litigation, in 25 REV. LITIG. 459, 467-69 (2006).
151. See J.F. Vargo, The American Rule on Attorney Fee Allocation: the Injured Person's Access to Justice, 42 AM. U. L. REV. 1567, 1617-1618 (1993).
152. Contemporary research about the role of the class action lawyer is deeply influenced by the analysis of Professor John Coffee, who in a 1987 contribution observed that "the high agency costs" in class actions "permit opportunistic behavior by attorneys". Attorneys, according to Pro fessor Coffee behave therefore often like an independent entrepreneur. See J.C. Coffee, Jr., The Regulation of Entrepreneurial Litigation: Balancing Fairness and Efficiency in the Large Class Action, 54 U. CHI. L. REV. 877, 882-883 (1987). These ideas have been further developed by Jona than Macey and Geoffrey Miller, according to whom the most salient feature of class action litiga tion is precisely the existence of entrepreneurial lawyers "not subject to monitoring by their puta tive clients".
153. See J.R. Macey, G.P. Miller, The Plaintiffs' Attorney's Role in Class Action and De rivative Litigation: Economic Analysis and Recommendations for Reform, 58 U. CHI. L. REV. 1, 7-8 (1991).
154. According to Robert Gasaway, a major contribution to the emergence of entrepreneurial law yers comes from a deregulation of the legal profession on three fronts: 1) Supreme Court decisions holding that the First Amendment prohibits the States from banning the solicitation of new clients by lawyers (such as NAACP v. Button, 371 U.S. 415 (1963) and In re Primus 436 U.S. 412 (1978)); 2) the similar ruling holding that advertising by attorneys is protected by the First Amendment (Bates v. State Bar of Ariz., 433 US 350 (1977)); 3) the failure to enforce ethical rules prohibiting exorbitant legal fees. See R.R. Gasaway, The Problem of Tort Reform: Federalism and the Regulation of Lawyers, 25 HARV. J.L. & POL'Y 953, 959-61 (1992).
155. See D. Christopher Wells, Report on Contingent Fees in Class Action Litigation, supra note 124, 469-70.
156. 28 U.S.C.A. § 1712 (West 2005).
157. See In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297 (N.D. Ga. 1993).
158. The importance of deterrence has been particularly stressed by Professor Myriam Gilles and Gary Friedman, who take issue with the widespread idea that class action reforms in the United States should be aimed at increasing the client's control over the lawyer's activities and improving the possibilities for the class members to obtain full compensation. They suggest that deterrence and not compensation is the true function of class action lawsuits and that the rules should be shaped accordingly. See M. Gilles, G.B. Friedman, Exploding the Class Action Agency Costs Myth: the Social Utility of Entrepreneurial Lawyers, supra note 45.
159. Of course, when it comes to fees the larger is not always the better. While too small fees would damage law enforcement, too much incentive could encourage attorneys to pursue frivolous cases, while companies could find themselves "over-deterred" in their economic activity. See D. Chris topher Wells, Report on Contingent Fees in Class Action Litigation, supra note 124, 465.
160. This notion has been expressed with great clarity by the Italian scholar Professor Claudio Con-solo: "Within Italy's institutional and social framework it is impossible to conceive of legal agents operating comparably to this American mode. The greatest obstacle is not the different principles under which our litigation expenses and attorney fees are allocated. Nor is it the particular fact that our legal system, like many others in Europe, outlaws the contingent fee, which calculates the at torney's compensation as a percentage of his client's entire recovery. Neither the one nor the other is the critical obstacle. Rather, it is mostly a question of the continuing centrality in our system of the injured person's role as the personal holder and proponent of rights, not as a figurehead. The litigation process dedicates itself to giving effect to the injured party's rights, with legal agents as mere technical assistants and certainly not as full representatives, or worse, as holders of direct litigation interests. The lawyers, then, are seen as an instrumentality dedicated to giving effect to the right of action or defence in a singular cause, and not as the protagonist of cases and proc esses." See R.B. Capalli, C. Consolo, Class Actions for Continental Europe? A Preliminary In quiry, supra note 9, 289-90.
161. Again, the Scandinavian countries are a major exception. In the case of Sweden, for example, the legislator has allowed an agreement between the attorney and the client about a method for fee calculation according to which the fee is calculated on an hourly base and than multiplied, for in stance two or three times, in case of victory. See Group Proceeding Act 2002 § 39 and P.H. Lindblom, Grupptalan i Sverige, supra note 40, 145-151.
162. One could observe that the difference between the United States and the European legal sys tems on this point is quite ironic and counter-intuitive. A nation that most Europeans consider more or less founded on individualism has a less individualistic focus in civil litigation than coun tries better known for socialistic and collectivistic approaches. For a similar observation see R.A. Nagareda, Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism, 62 VAND. L. REV. 1, 30-31 (2009).
163. D.L. 4/07/2006 n. 233 art. 2.
164. BVerfG, 1 BvR 2576/04, 12/12/2006, http://www.bundesverfassungsgericht. de/entscheidungen/rs20061212-1bvr257604.html.
165. See L. Silberman, The Vicissitudes of the American Class Action-With a Comparative Eye, 7 TUL. J. INT'L & COMP. L. 201 (1999).
166. See D. Christopher Wells, Report on Contingent Fees in Class Action Litigation, supra note 124, 466.
167. See also R. Nordh, Group Actions in Sweden: Reflections on the Purpose of Civil Litigation, the Need for Reforms, and a Forthcoming Proposal, supra note 40, 385.