Transnational Regulatory Litigation

Recent years have seen much debate about the role of national courts in addressing global harms. That debate has focused on the application by domestic courts of international law - for instance, in civil actions brought in U.S. courts to enforce human rights law. This article identifies a parallel development in the area of economic regulation. It classifies and analyzes a category of cases that seek the application of regulatory law by domestic courts in situations involving global economic misconduct. Like the public international law cases, these cases highlight the tension between the benefits to be gained by enhanced enforcement of global substantive norms and the need to observe the jurisdictional norms that order the exercise of authority within the international community. On the one hand, traditional jurisdictional rules unnecessarily foreclose valid arguments for marshaling the resources of national courts in order to improve the global welfare. On the other hand, however, those rules reflect legitimate concerns of foreign states about the exercise of power and authority within the international community. The Article seeks a resolution to that tension in the economic context. Situating transnational regulatory litigation within the broader framework of transgovernmental theory, it proposes a more functional approach to certain jurisdictional rules, as well as a procedural mechanism for use in cross-border class actions, that would legitimize the evolving role of national courts in implementing global regulatory strategies