|dc.description.abstract||In this dissertation I explain civil procedure in the age of the administrative state as a congressional delegation to private enforcers and the judiciary that happens often at the ‘cost of’ or ‘as an alternative to’ delegating to bureaucrats in the administrative apparatus. My basic argument is that civil procedure is a form of delegation of policymaking and implementation to private enforcers and courts, and that the intensity of said delegation depends, ultimately, (1) on whether it serves the political coalition controlling congresses, and (2) on whether congresses control the bureaucratic machinery that could address the
same issues. Under the theory, intense private enforcement, as created by congress, can only be expected in areas that are functional to the governing coalition or when the government is divided and hence congress presumes that the bureaucracy will be an unfaithful agent. In all other cases, congressional delegation through procedure should be expected to be weak or controlled, formally or informally, through the bureaucracy and the political branches. The theory I propose does not purport to comprehensively cover all types of civil procedure for all times in history. It is more predictive the closer procedure is to matters that are relevant to the governing coalition and when applied at the time of formal delegation through statute. The theory is also limited to explaining how the delegation through civil procedure grows or shrinks after the creation of the administrative state. As such, it is the result of the increased theorization and awareness of the power embedded in civil procedure and the effects of judicialization or juridification on the administration.
In the dissertation, I illustrate the power of the theory by applying it to the recent enactment of litigation regimes in environmental law and consumer law in Chile, which both show a substantial overlap between bureaucratic and private enforcement, but were created under different political conditions. In such application, the theory I develop shows more explanatory power than previous theories that linked the shape of consumer class actions and environmental actions (and civil procedure in general) to legal traditions, legal culture,
or the hierarchical nature of the administration of justice. Underlying my argument is the claim that ‘the structural choice about who gets to make and implement policy’ is politics and partisan politics all the way to the river||en_US