The Global Class Action and Its Alternatives

Abstract

The “American-style” class action, when combined with private rights, is an important tool of American regulatory policy. And just as American regulation has global reach, the global class action is not unfamiliar to U.S. courts. Yet, global U.S. class actions are facing ever-stronger headwinds. In addition to the recent retrenchment of class actions and international litigation generally, U.S. courts have raised additional barriers to global class actions in particular. This Article’s rst goal, therefore, is to document these developments and their consequences for regulation. Against this backdrop, this Article also reviews the options available to foreign lawmakers, foreign courts, foreign litigants and litigation funders, and foreign public enforcers. Foreign lawmakers may provide alternatives to global U.S. class actions; foreign courts and foreign litigants may explicitly or implicitly coordinate to approximate global class resolution; and foreign public enforcers may achieve the goals of global regulatory litigation while avoiding some of its legal impediments. Finally, this Article evaluates these various foreign responses from an institutional perspective, with special attention to the institutional incentives for lawmakers and law enforcers.