On Regulatory Discord and Procedure

Businesses are increasingly global. But domestic courts’ jurisdiction remains largely provincial; both public and private regulators have overlapping, mismatched authority. Regulatory discord is readily apparent in consumer protection cases. When the Dodd-Frank Wall Street Reform and Consumer Protection Act empowered state regulators while simultaneously creating an encompassing federal regulator—the Consumer Financial Protection Bureau—it further contributed to overlap between federal agencies, states, and private litigation. Whether this regulatory magnetism is optimal in terms of fundamental goals like compensation and deterrence is a hotly debated normative and empirical question. Yet, one need not wade too far into the substantive debate to appreciate the descriptive point that multiple regulatory layers exist and— whether normatively desirable or not—impact the procedural goals of aggregation. Aggregation, whether through a certified class action or multidistrict litigation, should not only enable regulators to enforce substantive rights, but should likewise encourage efficient resource use (of both litigants’ resources and judicial resources), generate binding resolutions, and produce accurate results through trial and settlement. Once cases conclude, procedure can intervene again through issue preclusion and stymie parties from relitigating issues that have already been decided, thereby preventing inconsistent verdicts