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.
S.I. Strong, Regulatory Litigation in the European Union: Does the U.S. Class Action Have A New Analogue?, 88 Notre Dame L. Rev. 899 (2012)