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Securities Class Actions as Pragmatic Ex Post Regulation (University of Georgia)
Securities class actions are on the chopping block-again. Traditional
commentators continue to view class actions with suspicion; they see class
suits as nonmeritorious byproducts of self-interest and the attorneys who
bring them as rent-seekers. Their conventional approach has popularized
securities class actions' negative effects. High-profile commissions
capitalizing on this rhetoric, such as the Committee on Capital Markets
Regulation, have recently recommended eliminating or severely curtailing
securities class actions. But this approach misses the point: in the ongoing
push and pull of securities regulation, corporations are winning the battle.
Thus, understanding the full picture and texture of securities class actions
necessitates a positive pragmatic account. This Article provides that account
and thus fills a significant gap in the benefit side of academic cost-benefit
literature. To do so, however, it self-consciously begins from a controversial
assumption: namely, that securities class actions provide a public good.
Integrating both public and private actors into ex post enforcement diminishes
collective action dilemmas, agency inaction, and private resolution of public
law matters through arbitration. Moreover, by supplementing ex post
enforcement, securities class actions produce positive externalities,
spillover effects that confer public advantages such as: innovation, cost-
reduction through information sharing, deterrence, transparent judicial
process, and both ...
University of Georgia
