Securities Litigation in the Roberts Court: An Early Assessment

This Article provides an early assessment–both quantitative and qualitative–of the Roberts Court’s securities-law decisions. While the Roberts Court has continued to take an average of one to two securities-law cases per year, such cases represent an increased share of the Supreme Court’s docket, compared to prior Courts, because its overall docket has shrunk. The Roberts Court has maintained the same overall split in “expansive” or “restrictive” outcomes as the post-Powell Rehnquist Court, but has reduced polarization: more than half were unanimous and only three included five-vote majorities. An attitudinal model does no better than a coin flip in predicting outcomes. This Article shows a newly heightened role for procedure and a resistance to bright-line rules, with procedural decisions more restrictive and rejections of bright-line rules more expansive, factors that predict outcomes for cases argued in the October 2014 term, and the types of cases likely to attract the attention of the Court in the future. The turn to procedure matches the background and interests of the Chief Justice, a former appellate litigator, leading a broader “procedural revolution” on the Court that stretches beyond the limited reach of securities law.