The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done

Abstract

The Roberts Court has issued more than two dozen class action decisions. The goal of this paper is not to catalogue this activity, but to focus on decisions in three specific areas: (1) class certification practice under Rule 23, (2) “fraud on the market” securities fraud litigation, and (3) the intersection of class practice and justiciability. Obviously, these are not the only areas the Court has addressed and, arguably, not even the most important. I choose them because they show different modes of engagement by the Court: revolution, evolution, and raising topics that will require future attention.

Regarding class certification practice, the Roberts Court has been revolutionary, mandating notable procedural changes – not by amendment of Federal Rule 23, but by interpretation of that provision. In the securities class area, in contrast, the Court has issued a series of evolutionary decisions culminating in Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System in 2021. That case largely closed the circle on issues left open in earlier cases. In the third area, the Court has dipped its toe in the water but not provided meaningful guidance. With regard to justiciability in class litigation, the Court has a good deal of work to do.

Keywords: civil procedure, class action, Roberts Court, justiciability, securities litigation, fraud on the market, standing

JEL Classification: K10, K22, K40, K41