One of the perennial questions at class certification (at least
under Rule 23(b)(3)) is whether the class is superior to other
forms of adjudication. Defendants will often raise individual
lawsuits as a viable alternative, but, in cases involving heavily
regulated industries, they may also invoke the possibility of
allowing a regulatory agency to address the problem as well.
Stanford professor David Freeman Engstrom has pursued that
argument to its logical extreme in his epic (97-page) Yale Law
Journal article Agencies as Gatekeepers. (PDF here.)
Professor Engstrom's primary focus is on whether any of the
various scholarly proposals to give regulatory agencies authority
to oversee, supplant, or coordinate private litigation is a viable
means of solving the various problems that arise from private
enforcement of statutes (or "regulation by litigation").
This question is of paramount importance to class action defense
lawyers.
