Regulatory Litigation in the European Union: Does the U.S. Class Action have a New Analogue

The United States has long embraced the concept of regulatory litigation, whereby individual litigants, often termed "private attorneys general," are allowed to enforce certain public laws as a matter of institutional design. Although several types of regulatory litigation exist, the U.S. class action is often considered the paradigmatic model for this type of private regulation. For years, the United States appeared to be the sole proponent of both regulatory litigation and large-scale litigation. However, in February 2012, the European Union dramatically reversed its existing policies toward mass claims resolution when the European Parliament adopted a resolution proposing to create a coherent European approach to cross- border collective redress. Given certain conceptual similarities between cross-border collective redress and global class actions, the question logically arises as to whether the European Union is in the process of embracing a form of regulatory litigation. This issue is of great importance not only to European audiences who may have to recalibrate their thinking about what constitutes "regulation" within the European sphere, but also to American audiences who will have to consider how the new European procedures affect the ability of U.S. courts to bring European parties into global class actions. Although many of the issues may appear to be procedural in nature, the more interesting--and challenging--analyses arise as a matter of regulatory law. This Article is the first to consider the European resolution from a regulatory perspective, using a combination of new governance theory and equivalence functionalism to determine whether the European Union has adopted or is in the process of adopting a form of regulatory litigation. In so doing, the Article considers a number of issues, including the basic definition of regulatory litigation, how class and collective relief can act as a regulatory mechanism, and the special problems that arise when regulatory litigation is used in the transnational context. The Article also includes a normative element, providing a number of suggestions on how European authorities--who are still in the early stages of drafting the relevant procedures--can better achieve the regulatory and other objectives set forth in the resolution. Through these means, the Article makes a significant contribution not only to the domestic understanding of regulatory law, but also to the increasingly important field of transnational regulation. Audiences in both the United States and the European Union, as well as readers from other countries, can benefit greatly from this analysis. I. INTRODUCTION For decades, Europe and the United States have been characterized as representing opposite ends of the spectrum with regard to their approach to regulation. (1) The United States has traditionally been seen as embracing a mixed model of shared public-private authority, with individual litigants being permitted, if not encouraged, to act as "private attorneys general" and enforce various public laws in an otherwise highly deregulated market environment. (2) European nations, on the other hand, have been painted as preferring a more formal regulatory model that includes a large number of legislative and administrative enactments that deny both the need and opportunity for any sort of "private" regulation through litigation. (3) While these stereotypes may still exist in the popular mindset, "[c]omparative studies of developments in regulatory law and policy in Western states over the past three decades have shown a widespread movement away from a top-down approach in public governance to an increasingly hybrid interaction of public and private actors." (4) This is intriguing, not just from an academic perspective, but also as a practical matter, since it suggests that European nations may be adopting what could be seen as a more Americanized model of regulation. …