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Abstract

This Article explores the practical impacts of the Court’s class-action jurisprudence from 30,000 feet, observing that, with some notable exceptions, the Court has nibbled away at the rough edges of class-action procedure while passing on chances to dictate more drastic reform. Part II is a chronological summary of notable Roberts Court cases that have come to define its approach toward class litigation. Perhaps surprisingly, the Court eased its way to this point, neglecting to grant certiorari in any significant class-action cases for the first four years after the swearing in of Chief Justice Roberts in 2005. That changed in 2009 when the Court began to grant certiorari over a group of cases that are widely perceived as changing the landscape of class litigation. In Part III, the Article examines the practical impacts of the Court’s class-action decisions and its certiorari denials, concluding that the Court seems to be focused on fine-tuning class-action procedure rather than ending it. The Court’s restrained attitude is reflected by a hesitancy to make broad pronouncements in the class action cases it decides and in its selectivity in choosing cases to begin with. Also in Part III, the Article explores how the Court’s reluctance to issue broad landscape-changing rulings has left breathing room for lower courts to fill in the doctrinal gaps. The Court has undeniably dictated a large amount of change in a few specific areas, especially in the arena of arbitration and class waivers. But the impact of change has been just as overstated regarding topics such as standard of review, federalism, merits consideration, employment, and overbroad classes—all areas that remain friendly enough to class actions that the procedure continues to thrive. Indeed, activity among the lower courts on class-action jurisprudence has often enabled the Court to approve of standards already in place, rather than write new class-action rules. In Part IV, the Article examines the areas of class-action opportunities that the Court either has not addressed yet or simply has overlooked. In some cases, the Court’s lack of action has enabled classaction practice to thrive, whereas in other areas, the Court’s guidance may be needed to provide clearer guidelines, much in the way the Court has done with respect to class waivers in arbitration agreements. The Article concludes by pointing out that this is not a Court that seems intent on ending class litigation or even significantly culling it. Instead, the Court appears quite comfortable pulling, tugging, and shaping the edges of class-action practice. Remarkably, though aggregate litigation looks different in many ways now than it did before the Roberts Court era, much of that change has come from the lower courts. The Supreme Court’s influence is reflected mainly in its endorsement of lower court t

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