Class actions and executive power

Zachary David Clopton*

*Corresponding author for this work

    Research output: Contribution to journalArticlepeer-review

    4 Scopus citations

    Abstract

    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
    Volume92
    Issue number4
    StatePublished - 2017

    Keywords

    • Administrative law
    • Civil procedure
    • Complex litigation

    ASJC Scopus subject areas

    • Law

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