Class actions and executive power

Zachary David Clopton*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

5 Scopus citations


Decisions about class certification and arbitration have depressed private enforcement class actions, reducing deterrence and enforcement of important substantive rights. Until now, the consequences of these procedural decisions for the separation of powers have not been well explored. An aggressive Supreme Court and an inactive Congress have increased the importance of federal administrative law—for example, administrative attempts to regulate arbitration. Moreover, a reduction in private enforcement compounds the importance of public enforcement. State and federal enforcers may piggyback on (successful or unsuccessful) private suits, and they may employ new tactics to maintain deterrence. While proponents of a robust regulatory state may take solace in these executive rejoinders, they are not without costs. Specifically, executive action may be less transparent, less durable, and more susceptible to political pressures than its alternatives.

Original languageEnglish (US)
Pages (from-to)878-894
Number of pages17
JournalNew York University Law Review
Issue number4
StatePublished - 2017


  • Administrative law
  • Civil procedure
  • Complex litigation

ASJC Scopus subject areas

  • Law


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