Shaping liability in private enforcement actions : a framework from tort and competition damages law in Europe and the United States

Abstract

Private enforcement—the pursuit of public policies through private plaintiff litigation — is used more than in the past, with the United States and the European Union as two of its main promoters. Theoretical and practical problems arise as private law, designed for another purpose, needs to change to adapt to the demands of enforcing public policy. The main question is how to change existing tort law rules to incentivise enforcement without sacrificing the structure and rationality of private law. Focusing on substantive law and specifically on the conditions of liability, I will ask how and why they should change, if at all. For this reason, I will use competition damages claims in the EU and the US as the primary case study, investigating how standing, causation, fault, and passive liability, are shaped in this area compared to general tort law.