Issacharoff & Miller on Aggregate Litigation in Europe

Samuel Issacharoff (NYU) and Geoffrey Miller (NYU) have posted “Will Aggregate Litigation Come to Europe?” on SSRN.  Here is the abstract:

This paper considers Europe’s experiment with aggregate litigation inlight of American experience. European thinking on the topic appears tohave reached consensus on two points: first, aggregate litigation willsoon be the norm for Europe; and second, whatever form Europeanaggregate litigation takes, it will not replicate American class actionlitigation with its domination by entrepreneurial plaintiffs’attorneys. We first examine four sources of dissatisfaction with theclass action to assess which are meritorious, which are ill-founded,and which derive from a deeper debate over whether or not there shouldbe private legal accountability for consumer claims. Drawing onAmerica’s long history of collective enforcement, we then ask whetherEurope will adopt the incentives and institutional arrangementsnecessary to make aggregate litigation an effective remedy. Our concernis that Europe’s revulsion at accepting the reality of legalenforcement as an entrepreneurial activity may leave the incipientreforms without the necessary agents of implementation.

ADL