Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism

In long-running debates over civil justice reform, two points remain broadly shared: the legal regime for civil litigation in this country is exceptional by comparison to European systems as a positive matter, and the United States is much the worse for it in normative terms. The positive dimension of this account pinpoints several exceptional features of the U.S. civil justice system: class actions, primarily on an opt-out basis; contingency-fee financing of litigation; rejection of Euro-style "loser-pays" rules that link responsibility for the fees of both sides to the outcome of the litigation; extensive reliance on juries as fact finders; costly pretrial discovery; and the availability of punitive damages in substantial areas of civil litigation, such as torts.' One normative implication drawn by some proponents of civil justice reform, particularly as to tort litigation, is that the foregoing features generate a considerable and undesirable drag on the U.S. economy. A related criticism posits that the civil justice system yields a paltry ratio between the compensation actually received by claim- ants and the expenses incurred by the legal system to deliver it. Some popular proponents even go so far as to suggest that much of the U.S. civil justice landscape facilitates a kind of interest group rent-seeking by the plaintiffs' bar, with the result of an "overlawyered" nation.