Class Actions and Executive Power

17 Pages Posted: 7 Dec 2016 Last revised: 23 Feb 2021

Date Written: January 24, 2017


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.

Keywords: class actions, arbitration, civil procedure, private enforcement, public enforcement, executive, executive power, administrative law, law enforcement

Suggested Citation

Clopton, Zachary D., Class Actions and Executive Power (January 24, 2017). 92 New York University Law Review 878 (2017), Cornell Legal Studies Research Paper No. 16-44, Available at SSRN:

Zachary D. Clopton (Contact Author)

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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