TY - JOUR
T1 - Class actions and executive power
AU - Clopton, Zachary David
N1 - Publisher Copyright:
© 2017 by Zachary D. Clopton.
PY - 2017
Y1 - 2017
N2 - 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.
AB - 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.
KW - Administrative law
KW - Civil procedure
KW - Complex litigation
UR - http://www.scopus.com/inward/record.url?scp=85032367338&partnerID=8YFLogxK
UR - http://www.scopus.com/inward/citedby.url?scp=85032367338&partnerID=8YFLogxK
M3 - Article
AN - SCOPUS:85032367338
SN - 0028-7881
VL - 92
SP - 878
EP - 894
JO - New York University Law Review
JF - New York University Law Review
IS - 4
ER -