Introduction
The original Manifesto refers to ‘procedures’ and ‘enforcement’ only once each. Yet, civil procedure is essential to any analysis of private law. In Europe, civil procedure and enforcement laws are advancing at a fast pace, influenced both by the European Union and national legislatures.
In the past two decades, Europe has witnessed a noticeable increase in collective actions and mass procedures. What was initially seen as something unique to American law has now expanded within the realm of private law in various areas such as consumer protection and unfair trading practices, securities, tort law, or environmental law. This ties to broad shifts in the European political economy: increasingly, individuals are granted rights of action instead of relying solely on public enforcement. Often, these rights can only be effectively enforced through group procedures and the aggregation of claims, especially when individual claims have low value.
This blog post will discuss the benefits of these significant changes in enforcing and adjudicating private law rights. Our main argument is that contrary to a widespread view in European private law literature, these developments should be embraced as they can often be the only means of enacting social justice.
Social justice and the (legal) market
A critical question concerning social justice is its often-adverse relationship with the market. While many view markets as fair and efficient ways of distributing assets, it can be questioned whether they produce socially optimal outcomes, something increasingly obvious in the current era of growing inequality, climate change, and neo-colonialism. This raises the question of whether, if at all, market mechanisms can be used to pursue social justice. Should progressives focus on countering injustices caused by markets, mitigating and preventing them, or could they use market mechanisms for their own cause? This tension is also present in legal markets: how are legal resources and remedies allocated, and how should the law influence this?
Private law is a crucial instrument of market-oriented coordination, and so is civil procedure. Progressive scholars in the US have highlighted that procedure is ‘…political economy all the way down’. Issues of access to justice, such as funding, legal costs, and legal aid, are often the decisive factor for claimants in choosing to pursue a claim. Accordingly, class actions and other mass procedures might be the only means for vast categories of claimants to enforce their rights, in view of the retreat of the welfare state. Private law scholarship, including its progressive strand, has largely overlooked that issue, focusing on harmonising or critiquing substantive private law.
However, procedural issues should take centre stage for any socially oriented private law scholarship. Any progressive reforms will likely face resistance from formidable actors – such as powerful corporations and lobbying groups – who will attempt to water down changes or otherwise dilute their impact. Progressive private law scholarship cannot subscribe to a strict separation between substantive and procedural law. Principles outlined in the Manifesto should be effectively enforced; otherwise, they will remain toothless.
In fact, defining the object of research as private law simpliciter is a dangerous step in itself. Focusing solely on substantive rules should be seen as a relic of formalism that risks impeding political action by narrowing the object of both research and mobilisation.
Class actions in the European Union
Class actions serve as a good example of our claim. While a marked feature of US civil procedure, they are not as commonly used in most European jurisdictions. Litigation, especially mass litigation, is still viewed with suspicion as a regulatory mechanism in Europe, and efforts in this area are still in their early stages.
That said, several essential components for mobilising these efforts already exist within EU private law. The Representative Action Directive paves the way for European mass actions, albeit not going far enough. Meanwhile, the Antitrust Damages Directive is ground-breaking in empowering private claimants to enforce market rules and has led many European states to introduce class action mechanisms in this area. The Corporate Sustainability Due Diligence Directive also provides a private law framework for pursuing environmental and human rights objectives in collaboration with market players. Furthermore, ongoing discussions about a new litigation funding directive underscore the recognition of the importance of funding mechanisms in ensuring access to justice and levelling the legal playing field. Those instruments exist alongside a more general push for procedural reforms such as ADR or even regulatory redress mechanisms in consumer law and beyond.
The progressive agenda should take stock of these developments and embrace a pragmatic perspective that draws inspiration from American private law practices, particularly class action lawsuits.
Progressive class actions
Class actions are often dismissed as reinforcing existing power structures, facilitating profit-hunting, or as neo-liberal. However, it is possible to design such actions to serve progressive objectives. Within this framework, current instruments of EU law can be re-interpreted, re-evaluated, and eventually re-designed as a venue for social justice. This would tie nicely with a growing literature on the relationship between civil procedure, in particular class actions, and social justice currently thriving in the US. Therefore, the main question is whether the Manifesto can frame class actions as a progressive device.
One way to do so would be to make class actions more inclusive and providing a more active role for class members. Re-imagining class actions as more democratic would involve giving claimants more control and ensuring that these mechanisms are not solely driven by and merely serve the interests of elite lawyers and funders. Reformers should ensure that the incentive structure encourages real social change rather than profit maximisation. The real challenge in that regard is to counter the influence of powerful economic forces and technocrats over the legal system.
Democratic input and greater representation of marginalised voices in legal reform are necessary to overcome this, and so is a more inclusive structure of class actions. To this end, close attention should be paid to funding. Public funding for progressive litigation could level the playing field, just like innovative institutional structures, such as consumer protection bodies designed to represent group interests. Funding mechanisms could also include public/private agreements or regulatory redress funds, empowering underrepresented claimants.
More mundane changes could include revising traditional private law doctrines in cases of collective harm to facilitate effective rights protection. Limitations and defences such as standing, causation, and the compensatory principle found in all European states’ tort and contract law might impede the public policy goal pursued by collective actions and thus should be adjusted accordingly. The same can be said on the level of civil procedure; adjusting evidentiary standards could enable more claims to proceed, especially where the harm is systemic and not easily proven with traditional private law tools.
From a scholarly perspective, a sociological rather than merely doctrinal approach should complement the above developments. The main aim of such a perspective should be to prevent repeat players (such as corporate defendants or elite legal professionals) from dominating the legal process, including class actions.
Other jurisdictions
Other legal systems can serve as a benchmark for designing progressive European civil procedure. While the UK has made progress in enabling collective actions and creating a regime distinct from the US one, the legal mechanism employed remains primarily market-oriented. Such a market-driven approach often fails to meet the needs of marginalised groups and uphold social justice. Nonetheless, despite deficiencies, the introduction of collective actions has tangible results: it has resulted in litigation that should be desirable in Europe, such as in supply chains, and it is by no chance that vital interests have tried to block collective action reform.
Neo-liberal bias
We are aware of the various criticisms levelled against the class action mechanisms. Reliance on class actions risks burdening individuals (and law firms) instead of institutions with pursuing social justice. It also risks the expansion of a ‘rights rhetoric’ and a focus on individual goals to the exclusion of social causes. Therefore, we do not claim that class actions should be a complete substitute for public distributive measures. Nevertheless, we consider civil procedure a fallback mechanism that can play a significant role in furthering the progressive agenda. If nothing else, it can raise awareness of many distributive issues subject to class actions.
Accordingly, class actions – closely intertwined with the market dynamic – do not have to be considered as inherently regressive and neo-liberal. The potential to progressively re-design class actions, often overlooked by many traditional European private lawyers and technocrats, might constitute an innovative solution to achieve social justice. The emphasis should be put on the structure of class actions, their democratic potential, reconciling the interests of different actors, and creating a fair incentive structure which does not privilege wealthy elite lawyers.
Conclusion
In sum, emphasis in the Manifesto should not solely be placed on substantive private law rules but also on enforcement. Combining private law with innovative legal procedures would defy formalistic notions of private law’s distinctiveness and technocratic character. Legal realism, which prioritises practical outcomes over doctrinal purity, should guide the development of these procedures. While some may see certain means as ‘distasteful’ – such as class actions – they can be necessary to achieve social justice goals. Such a conclusion and goal is consistent with the original Manifesto that emphasised that European private law rules should not be drafted by a legal elite working alongside powerful business interests and influential pressure groups. Democratic input is crucial in shaping new enforcement methods, particularly in rethinking class actions. Indeed, the averseness of elite private lawyers in Europe against class actions might be a good indication of their potential to bring progressive change. Moving away from formalism and doctrinarism, class actions—reimagined with a focus on inclusion, equity, and social justice—can become powerful tools for progressive change.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
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