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The Privatization of Justice: Some Aspects of Recent Developments in American and Swedish Procedural Law*

Published online by Cambridge University Press:  21 May 2009

P.H. Lindblom
P.H. Lindblom
Affiliation:
LLD, Professor of Civil and Criminal Procedure; Dean, Faculty of Law, Uppsala University, Sweden
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Extract

The past two years—1990 and 1991—have possibly been the most important in peacetime history in Europe for several centuries. The breakdown of communism in Eastern Europe and the U.S.S.R., the removal of the iron curtain, the fall of the Berlin wall and the reunion of Germany, the end of the Warsaw Pact, the increased integration in Western Europe and the disintegration of the U.S.S.R. and Yugoslavia—each one of these events is important enough to be a political landmark. Together they constitute a period of outstanding importance and, probably, a platform for equally significant changes to come.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 199 - 214
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. Cf., Frenk, N. and Hondius, E., ‘Collective Actions in Consumer Affairs: Towards Law Reform in the Netherlands’, European Consumer Law Journal (1991) pp. 17 and 19Google Scholar (‘… the present Dutch policy of deregulation, particularly privatisation’) and van Driel, M., Zelfregulering [Self-regulation] (Thesis Utrecht, Deventer 1989).Google Scholar

2. See Lindblom, P.H., Grupptalan. Det anglo-amerikanska class actioninstitutet w svenskt perspektiv [Group Actions. The Anglo-American class action suit from a Swedish perspective] (1989) p. 45 et seq.Google Scholar

3. Former Dean of Bloomington Law School, Indiana; presently, Director of American Bar Foundation.

4. Garth, B.G., ‘Public and Private Justice: Issues in Ideology, Professional Interest, and Private Governance’, American Bar Foundation, Working Paper #9006, p. 33.Google Scholar

5. In this essay America, U.S.A. and U.S. will be used interchangeably to denote The United States of America.

6. Cambridge, Massachusetts, (1985).

7. Garth, B.G., ‘Privatization and the New Formalism: Making the Courts Safe for Bureaucracy’, 13 Law and Social Inquiry (1988) p. 157 et seq.CrossRefGoogle Scholar

8. See Chayes, A., ‘The Role of the Judge in Public Law Litigation’, 89 Harv. L. Rev. (1976) p. 1281 et seq.CrossRefGoogle Scholar, and Fiss, O., ‘Supreme Court — Foreword: The Forms of Justice’, 93 Harv. L. Rev. (1979) p. 1 et seq.CrossRefGoogle Scholar

9. See Fiss, , loc. cit n. 8Google Scholar, as described by Garth, , loc. cit. n 4, p. 5.Google Scholar

10. See Scott, K., ‘Two Models of the Civil Process’, 27 Stan. L. Rev. (1975) p. 937 et seq.CrossRefGoogle Scholar

11. It is tempting but certainly an exaggeration to use the expression ‘shift of paradigm’ (again); public law litigation is better described as a complement than as an alternative to the traditional way of looking at civil procedure as more or less a private two-man battle. And public law litigation was probably more predominant in the federal courts than in the state courts.

12. See Garth, , loc. cit. n 7, p. 162.Google Scholar

13. See Garth, , loc. cit. n 7, p. 160 and p. 162 ftn 12.Google Scholar

14. See Garth, , loc. cit. n 4, p. 8.Google Scholar

15. Ibid

16. The following description and quotations are gathered from die Vice-President's manuscript at the meeting (‘Office of the Vice-President, Prepared remarks by the Vice-President, Annual meeting of the American Bar Association, Atlanta, Georgia, August 13, 1991’) and from ‘Fact sheet, The President's council on competitiveness. Agenda for civil justice reform in America’ (hereafter, Fact sheet).

17. Garth does not seem to be totally convinced that there is a crisis after all, see Garth, , loc. cit n. 7, p. 173.Google Scholar

18. According to the Vice-President (see Fact sheet, supra n. 16, p. 2) ‘The cost of our litigous society is borne by:

- Consumers who pay higher prices for goods and services and insurance.

- Consumers also suffer when products are not available. Almost half of all U.S. manufacturers have withdrawn products from the market due to liability issues.

- Workers who lose their jobs. 1 out of 7 companies indicates it has laid off employees because of liability issues.

- Businesses that have higher costs.'

A comment: the presumed cost-saving effects of the proposals are presented primarily as being to die advantage of ‘consumers’ and ‘workers’; ‘business’ is mentioned last and least Nothing is said about the costs (or profit) created by defective products (Asbestos, Dalcon Shield, Agent Orange, Thalidomide, etc.), by price-fixing or by activity harmful to the environment…

19. See Fact sheet, supra n. 16, p. 1.

20. See Fact sheet, supra n. 16, p. 1. An early settlement is generally based on less information and consequently less likely to reshape the behaviour of the parties, see Garth, , loc. cit n. 4, p. 11Google Scholar; cf., section 2.2.1 infra.

21. See Fact sheet, supra, n. 16, p. 1 and supra n. 18.

22. In Sweden some judges at the public courts, even Supreme Court Justices, (as well as university professors) work as arbitrators in their spare time. So far this has not been subject to any criticism.

23. See Garth, , loc. cit. n. 4, p. 1.Google Scholar

24. But see Fiss, O., ‘Against settlement’, 93 Yale L.J. (1984) p. 1073.CrossRefGoogle Scholar

25. See Garth, , loc. cit n. 4, p. 4.Google Scholar

26. See 58 A.B.A.J. (1972) p. 930.

27. See Cappelletti, M. et al. , ‘Access to Justice. Variations of a World-Wide Movement’, 46 RabelsZ (1982 )p. 664.Google Scholar

28. The Vice-President's expression ‘multi-door courthouse’ may be a way of saying that not only private but also public alternatives, e.g., court-annexed arbitration, are intended.

29. See supra, at n. 21.

30. Supra, n. 18.

31. See Lindblom, , op. cit n. 2, p. 444.Google Scholar

32. E.g., the Labour court (arbetsdomstolen), the Market court (marknadsdomstolen) and the Housing court (bostadsdomstolen).

33. E.g., the Tribunal for the protection of the environment (koncessionsnämnden).

34. But see infra, section 2.2.1 in fine.

35. See Lindblom, P.H., ‘The Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation in Sweden’, Scandinavian Studies in Law (1985) p. 101.Google Scholar For a presentation of the three ‘waves’ of the access to justice movement, see Cappelletti, M., ed, Access to Justice and the Welfare State (1981).Google Scholar

36. But see concerning American courts, Fiss supra, at n. 8.

37. See e.g., 2 DsJu (1989) p. 14; proposition 1986/87:89, pp. 111, 112Google Scholar; and Lindblom, , loc. cit n. 35, p. 104.Google Scholar

38. In Finland a similar proposal was accepted in 1978, see Tala, J., Nordisk Embetsmannskomité for konsumentspørsmål, report no. 7 (1990) p. 99.Google Scholar

39. Ekelöf, P.O., Svensk Juristtidning (1981) p. 113Google Scholar (translated by CCA. Voskuil); see also Lindblom, , loc. cit. n. 35, pp. 108, 110Google Scholar; and Cappelletti, M. and Garth, B.G., ‘The Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation’, Effektiver Rechtsschutz und Verfassungsmässige Ordnung (1983) p. 124.Google Scholar The view put forward by Ekelöf obviously presupposes mat behaviour modification is accepted as an important function of civil procedure.

40. See Lindblom, P.H., ‘Discovering Discovery’, Festskrift till ulla Jacobsson (1991) p. 139.Google Scholar

41. In small claims cases, however, no costs for counsel are paid, i.e., a kind of American no-fee rule.

42. The trend is rather an increased interest in group actions, see infra at n. 51.

43. See section 2.2.2, infra.

44. See supra, at n. 16.

45. See Proposition 1986/87:89, supra n. 37, pp. 110–114.Google Scholar

46. See 2 DsJu (1989).

47. In another article, ‘The Institution of the Private Attorney General: Perspectives from an Empirical Study of Class Action Litigation’, 61Google ScholarS. Cal. L. Rev. (1988) p. 353 et. seq.Google Scholar, B.G. Garth, J.H. Nagel and S J. Plager discuss related matters, i.e., the relationship between public and private initiatives to start proceedings. They reach the conclusion that expanded state activity (inside or outside the court system) results in a corresponding increase of private initiatives, for example public interest actions on a ‘private attorney general’-basis. Similarly, a decrease in state activity of tins kind is connected to a corresponding decline in the private sector.

48. In Norway, private organizations have recently been granted the right to claim damages in environmental litigation. This is probably the first European example of an organization action with such a possibility.

49. Cf., Frenk, and Hondius, , loc. cit. n. 1, p. 19.Google Scholar

50. 59 Statens offentliga utredningar (1991) p. 286.Google Scholar

51. 4 Dir Ju (1991).

52. Yet another kind of intra-procedural privatization is discussed in section 3, infra.

53. See Garth, , loc. cit. n 7, p. 166.Google Scholar

54. Supra, at nn 26 and 27.

53. See for further discussions on the tendency to litigate, Lindblom, P.H. and Watson, G., Courts and Lawyers Facing Complex Litigation Problems. A General Report to the IXth Conference on Procedural Law (1991) p. 22.Google Scholar

56. See Garth, , loc. cit. n. 4, pp. 13–14Google Scholar; and Fiss, , op. cit n. 8.Google Scholar

57. See Lindblom, and Watson, , op. cit n. 55, at ftn. 114.Google Scholar

58. E.g., the Code of Judicial Procedure (Rättegångsbalken) 10:16 (Chap. 10, Art 16), 10:20, 17:5, 14:7a, 42:10,42:14, 42:16, 42:17a, 42:18,43:8,43:14,49:1,56:15.

59. ‘Entre le fort et le faible, c'est la liberté qui opprime et la loi qui libère’ (Charles Forbes de Tryon de Montalembert).

60. The New Dealers held that ‘arbitration… shielded trade practices from public scrutiny and permitted powerful interests to insulate their disciplinary procedures, substituted private will for social control’, see Garth, , loc. cit. n. 4, p. 5 ftn. 2.Google Scholar

61. See Garth, , loc. cit n. 4, p. 12.Google Scholar

62. See Cappelletti, M. and Garth, B.G., ‘Introduction — Policies, Trends & Ideas in Civil Procedure’, 16Google ScholarInternational Encyclopedia of Comparative Law, p. 10 et seq.Google Scholar; and Garth, , loc. cit n. 4, p. 1.Google Scholar

63. Garth, , loc. cit n. 7, p. 169.Google Scholar

64. See section 2.1, supra.

65. See Garth, , loc. cit n. 4, p. 2.Google Scholar

66. See supra, n. 1.

67. See Garth, , loc. cit n. 7, p. 172.Google Scholar

68. See section 2.1, supra.