The Roberts Court has generated a remarkable corpus of class action jurisprudence. From Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. in 2010 through TransUnion LLC v. Ramirez in 2021, it has issued more than two dozen class action decisions. The goal of this Article 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. 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 that culminated 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 guidance. With regard to justiciability and class litigation, the Court has a deal of work to do.
Category: Issue 3
In 1970, then-Chief Justice Burger gave the inaugural Year-End Report on the Federal Judiciary as an address to the American Bar Association. Each year since, the Chief Justice has released a Year-End Report. Civil procedure has frequently been a focus: diversity jurisdiction, the rulemaking process, changes to the Federal Rules of Civil Procedure, and the role of district judges in civil litigation have all been highlighted in various Reports. This Article highlights the trend of civil procedure topics in the Year-End Reports, with a special emphasis on Chief Justice Roberts’ 2015 Report.
John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (ESI). These changes address the duties of preserving some ESI for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on ESI, with some predating any version of Rule 37(e). To date, Congress has remained quiet on lost ESI in federal civil actions.
This Article reviews the history behind, as well as the current, FRCP provisions on ESI, particularly the Rule 37(e) changes. It also reviews the ESI changes proposed to Rule 37 in 2013 that were not adopted. These reviews will focus on how the FRCP has addressed and now addresses lost discoverable ESI.
These reviews are accompanied by an examination of state civil procedure laws on pre-suit and post-suit ESI losses. State laws are examined as they suggest potential FRCP reforms. A brief survey of state spoliation claims, whether in tort, contract, or otherwise, follows because these claims can be pursued in federal courts for either pre-suit or post-suit ESI losses impacting pending civil actions.
All this then serves as the basis for exploring significant issues on lost ESI in federal civil actions. Such issues include the uncertainties arising from the FRCP distinctions between ESI and non-ESI, as well as between varying forms of ESI; the challenges in pursuing state spoliation claims in related federal civil actions; and the problems arising when discoverable ESI is lost by nonparties. The explorations will lead to some tentative thoughts on FRCP reforms involving lost ESI that would prompt greater justice, efficiency, and economy, per the FRCP 1 mandate. Possible new approaches include FRCP amendments broadening the opportunities for pre-suit ESI discovery and creating new avenues for pre-suit protective orders on behalf of those possessing or controlling relevant ESI, perhaps modeled on the recent Arizona Civil Procedure Rule 45.2.
Climate change has become one of the most pressing issues of the twenty-first century, endangering not only countless animals and ecosystems, but the lives of thousands of individuals—and Florida is on the front lines of this crisis. The scientific community has come to a consensus that humans are to blame for the calamity; even though hundreds of millions of dollars have already been lost to the effects of climate change, those who have been affected have not been able to find redress or relief. When refusing to offer such redress, most courts claimed these individuals were barred by the doctrine of standing. This Article explores the history of Article III standing and how it has been shaped specifically around environmental cases. It outlines how courts do have the power to hear cases regarding climate change and, finally, this Article explains the importance of having the judicial system hear such cases, as opposed to relying on the other two branches of government to solve this crisis.
Over the past decade, there has been an increased social awareness regarding transgender issues. This has led to the transgender community achieving progress in many aspects of everyday life. However, one area in which transgender persons continue to struggle is behind bars. Medical treatment for incarcerated transgender persons has become a controversial topic both in public opinion and the law.
This Article will trace the journey of Reiyn Keohane, a transgender inmate in the Florida prison system, from her arrest to her challenge against the Florida Department of Correction’s hormone treatment and social transitioning policies. For a brief moment in time, Keohane won a major victory for transgender inmates when the trial court held that both policies were unconstitutional. This victory was short lived however, as the Eleventh Circuit Court of Appeals reversed that decision in Keohane v. Florida Department of Corrections Secretary. The author takes a critical look at the Eleventh Circuit’s opinion, specifically its analysis regarding mootness and cruel and unusual punishment.
In the end, the author suggests that the Eleventh Circuit may have gotten it wrong and highlights how there is now a split among circuits regarding what the Constitution demands when it comes to medical treatment for transgender inmates.