Securities Litigation in the Roberts Court: An Early Assessment

Abstract

This article provides an early assessment – both quantitative and qualitative – of the Roberts Court’s securities law decisions. Such cases represent an increased share of Supreme Court’s docket, compared to prior Courts, but only because its overall docket has shrunk, while it has continued to take an average of one to two securities law cases per year. The Roberts Court has maintained the same overall split in “expansive” or “restrictive” outcomes as the post-Powell Rehnquist Court, with 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. What are new is a heightened role for procedure and a resistance to bright-line rules, with procedural decisions more restrictive and rejections of bright-line rules more expansive. 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, beyond the limited reach of securities law. The analysis is applied to predict outcomes for cases to be argued in the October 2014 term, and is used to sketch the types of cases likely to attract the attention of the Court in the future.