The Regime Politics Origins of Class Action Regulation

Abstract

This Article highlights that when procedural rules are legislated and there is substantial coordination between the executive and legislative branches, procedures with potential structural impact are weighted against alternative means of policymaking and implementation. This makes many Continental law countries, parliamentary countries, and countries governed by solid national majorities with substantial control over elected branches, and in general places where power is less fragmented, less likely to encourage American-style class actions. This is manifested in legislative choices of a private enforcement regime for class actions, which, when allowed, is designed to be subordinate to or to piggyback on the enforcement of preexisting bureaucracies. The theory is illustrated with the enactment of class actions in Chile, which is a civil law country that has experimented with class actions since 2004.