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A Post Minimum Contacts World

Apr 4, 2022 Christine BartholomewAdd a Comment

Personal jurisdiction is one of those legal headscratchers. Courts and commentators assume that personal jurisdiction doctrine—which delimits where a defendant can face suit—is rooted in the due process clause, imposing a constitutional limit on the reach of state authority. This means courts usually find personal jurisdiction (1) where a defendant resides, (2) where it has sufficient “minimum contacts” that closely “relate to” the litigation, or (3) where it is physically served with process. But the Supreme Court has limited this last option—“tag jurisdiction”—to individuals, not corporations. In a great new article, Patrick Borchers offers a contrary view, decoupling personal jurisdiction from due process and concluding that states can constitutionally adopt long arm statutes permitting tag jurisdiction over corporations.

The Supreme Court has struggled to articulate a workable test for personal jurisdiction. So when Ford v. Montana, a products liability case, yielded a unanimous ruling last year, it generated attention. The majority found Ford’s significant contacts relating to its car business—such as selling and servicing its cars in the forum state—sufficed for personal jurisdiction, even though the individual vehicles involved in the accidents were originally purchased elsewhere. As Anya Bernstein and I have explained, Ford clarifies that, for personal jurisdiction purposes, a defendant’s contacts with the forum state need not give rise to the particular cause of action; it is enough for the defendant’s state contacts to relate to the lawsuit’s “underlying controversy.”

With this crucial issue resolved, Ford will have a significant immediate effect on personal jurisdiction doctrine. But Borchers offers a fascinating longer view of the issues Ford raises. His lively article stems from Justice Gorsuch’s concurring opinion, which was joined by Justice Thomas. The concurrence agrees with the outcome but questions the majority’s minimum contacts analysis. Instead, Gorsuch invites an analysis of personal jurisdiction from a textualist and originalist lens.

Borchers accepts this invitation and challenges conventional personal jurisdiction scholarship and doctrine by reaching three conclusions. First, “[t]he current constitutional rule that corporations are subject to general jurisdiction only in the states in which they have their headquarters or are incorporated is utterly ahistorical and disastrous in practice.” Second, after detaching personal jurisdiction from due process, he argues that the Court can jettison the beleaguered minimum contacts test. Borchers builds on these conclusions to make his boldest claim—states have the constitutional authority to enact long arm statutes permitting corporate tag jurisdiction.

In reaching this conclusion, Borchers untethers personal jurisdiction from procedural due process. The “conventional view of Pennoyer—establishing the due process clause itself as a limitation on state-court jurisdiction—might be a ‘giant misunderstanding.’” The minimum contacts test—the Court’s proposed means of measuring whether due process allows a state to exercise personal jurisdiction—is the product of a misreading of Pennoyer v. Neff, the path-breaking case from which the Supreme Court spent decades stumbling to articulate a new vision for personal jurisdiction. Borchers analyzes Pennoyer’s text and historical context to weave an argument that “Due Process—as originally understood—quite likely did not itself supply jurisdictional rules, but rather was a mechanism for enforcing rules that come from elsewhere.”

This is where the article breaks new ground

Borchers identifies state long arm statutes as “that elsewhere” underlying personal jurisdiction requirements. Had I come across such a conclusion in isolation, the skeptic in me would have bristled. But Borchers leads his readers towards this point by methodically and convincingly unpacking this history of personal jurisdiction. He spells out how separating the doctrine from due process allows the judiciary to forego “the ever-morphing minimum-contacts/fair-play test [that] too often put[s corporations] beyond the grasp of plaintiffs harmed in their home states by multinational enterprises exploiting the forum-state’s market.” He examines the world of personal jurisdiction post-Pennoyer but pre-minimum contacts, analyzing key New York and North Carolina decisions approving state long arm statutes permitting tag jurisdiction over corporations. These decisions, combined with his close reading of Pennoyer, prove his claim that due process need not limit a state’s reach over an out of state defendant personal jurisdiction.

The payout for working through this line of reasoning is significant. Should the Court recognize that due process is a means for challenging—not a source of—personal jurisdiction requirements, state long arm statutes can extend further than the limited reach of the minimum contacts test. Such statutes must identify a forum that does not “put the defendant at a practical disadvantage in defending the case.” This means states can adopt long arm statutes allowing corporate tag jurisdiction, negating “the advantages corporations gained in prior decades by being able to do some business while evading jurisdiction in the forum state.”

There is a lot here, too much for me to do all of Borchers’ article justice in this review. He walks the reader through each claim, interweaving existing scholarly debates with his own assiduous readings of legal authority. Even as one uninclined towards textualist or originalist arguments, the article left me with a tremendous amount to consider about a post minimum contacts world.

“Order Without Law” in Discovery

Mar 21, 2022 Seth EndoAdd a Comment

Discovery drives U.S. civil litigation but rarely grabs the public’s attention. Recent high-profile cases offer exceptions to this rule. In 2022, MyPillow CEO Mike Lindell’s refusal to participate in the discovery process in the $1.3 billion defamation claim brought against him by Dominion Voting System made national news. A few months earlier, Remington Arms garnered major media coverage after it produced thousands of cartoons, emojis, and other seemingly irrelevant images in response to a document request in the lawsuit brought by ten families of victims in the Sandy Hook shooting tragedy. These aggressively unlawful discovery machinations might simply demonstrate disregard for the rule of law in these contentious times. But civil discovery’s time in the shadows also might embolden parties’ misbehavior.

In Discovery Culture, Edith Beerdsen argues that discovery is primarily an extralegal practice governed by the informal norms of the legal community, which can explain Lindell and Remington’s behavior and more. Beerdsen explores this phenomenon and how it interacts with formal legal authorities to influence parties’ decisions about what discovery requests are reasonable, when to cooperate, and when to seek the court’s intervention. Beerdsen’s descriptive and theoretical accounts of how discovery functions greatly add to the study of American civil litigation.

Identifying Discovery Culture is a major contribution by itself. It can be hard to see how discovery functions because it is a stage of litigation that largely happens away from the court’s active supervision. And, even when a discovery dispute is brought to a judge, formal orders are rare and appeals are virtually unheard of. Despite these challenges, Beerdsen finds a plethora of evidence for Discovery Culture. She identifies multiple statements by lawyers describing how regional or practice norms shape how they handle discovery and related disputes. She charts changes to the Federal Rules of Civil Procedure designed to account for existing discovery practices. Most strikingly, Beerdsen examines ten years of deposition disputes from three “middle-of-the-pack federal district courts with roughly typical caseloads.” The study found few formal orders, consistent with her hypothesis that parties resolve most disputes without judicial interventions interpreting Rule 30(a). And those uncommon orders involved instances in which the Rule requires a court order regardless of the parties’ agreement, flagrantly obstructive behavior, or especially unusual fact patterns.

Having identified Discovery Culture, Beerdsen specifics its nature and fit within existing models of extralegal practice. Beerdsen pushes back on the notion that discovery neither is governed by much formal law nor the “shadow of the law.” She provides a thoughtful description of the law of discovery and broader ruminations on the nature of law itself. She fits Discovery Culture within Robert C. Ellickson’s “order without law” framework. The key idea is that, especially in close-knit communities, individuals’ primary conduct is dictated by social norms even if those norms contradict formal legal authorities. Beerdsen provides a rigorous, extended account of the framework and how it describes discovery better than a traditional, positivist account of the law.

Ellickson’s study of order without law in Shasta County’s agricultural community provided a more optimistic account than Beerdsen’s description of civil discovery in federal court. She discusses several shortcomings, including the risk that the flexibility and indeterminacy of cultural norms may exacerbate the unequal power of parties or lead to violations of other trans-substantivity norms. She proposes several solutions, including enhancing required disclosures that provide outsiders with a better sense of prevailing cultural norms and could be used to develop additional reforms.

Beerdsen’s Discovery Culture is an important and timely work that identifies a previously unrecognized driver of discovery. But the article is not just for discovery enthusiasts. It is best understood as a case study explaining the role of rules within American civil litigation.

Civil Procedure for Lawyerless Courts

Feb 28, 2022 Allan ErbsenAdd a Comment

Law students often perceive civil procedure as the first-year subject that is least accessible to nonlawyers. Before law school, students signed contracts, owned property, monitored criminal trials, encountered torts, and invoked the Constitution. But civil procedure teems with novel concepts, mysterious rites, and unfamiliar vocabulary. These features beguile students into viewing civil procedure as a realm in which only lawyers tread. The case method reinforces this misperception by focusing on published opinions arising from litigation between represented parties. The misperception persists after graduation and influences how lawyers conceptualize the field of civil procedure.

Unfortunately, focusing on how procedure shapes opportunities for lawyers obscures the large volume of civil cases in which at least one party does not have a lawyer. A growing literature explores the implications of failing to adapt lawyer-centric procedural ideals to “lawyerless” adjudication. Scholars have analyzed state courts in which cases routinely proceed without lawyers (such as family courts) or in which represented parties sue unrepresented parties (such as housing courts). These courts affect millions of vulnerable people in traumatic circumstances. Yet procedures in many lawyerless courts fail to account for the practical consequences of self-representation within a nominally adversarial system. The ensuing risk of injustice has led commentators to propose a wide variety of reforms. Pamela Bookman and Colleen Shanahan’s A Tale of Two Civil Procedures looks beyond “fixing” specific procedures. The Article focuses instead on removing obstacles to understanding what is broken. A critical obstacle is that commentators often frame the field of civil procedure in a way that obscures the importance of lawyerless adjudication. The Article suggests reframing the field to directly engage with distinctions between “lawyered” and “lawyerless” courts. Bookman and Shanahan contend that this approach will make descriptive accounts of civil procedure more precise, normative discussions more nuanced, and reform proposals more effective.

The prevalence of pro se litigation in state courts is well-known. Scholars might therefore wonder why attendant procedural shortcomings have resisted reform. The Article insightfully addresses that question by explaining how traditional rubrics for analyzing civil procedure elide the problem of lawyerless adjudication. For example, many fields of procedural scholarship analyze subtle distinctions between federal and state courts. Emphasizing the federal/state dyad focuses attention on the subset of state courts that most closely resemble federal courts. These courts generally adjudicate disputes between represented parties. Likewise, using the Federal Rules of Civil Procedure as a baseline spotlights the subset of state procedural codes that govern similar types of lawyered cases. When procedural scholars do analyze pro se litigation, they generally emphasize access to justice for unrepresented plaintiffs. This framing can obscure the struggles of unrepresented defendants trying to exit rather than enter a court. Moreover, analysis tends to focus on written procedures accessible to outsiders and frequently overlooks unwritten procedures known only to insiders. Procedures of extraordinary practical importance thus hide in a fog of unrecorded experiences.

After explaining why procedures in lawyerless courts evade scrutiny, Bookman and Shanahan suggest mechanisms for encouraging and implementing critical scholarship. Their central insight is that procedural scholars should rethink the rubrics that animate analysis of civil procedure. In addition to concentrating on formal lines (such as federal/state) or clashes between values (such as merits/efficiency), scholars should stress the distinction between “lawyered and lawyerless courts.” Foregrounding that distinction would encourage scholars to examine dimensions of civil procedure that they might otherwise not consider.

Bookman and Shanahan support their suggestion by surveying three fields of procedural scholarship through their proposed lens. They “lead by example,” using each case study to illustrate their proposed inquiry and to confirm the inquiry’s value.

First, the authors review recent studies of procedural rulemaking that analyze the development of written rules and “ad hoc” practices. They conclude that the literature implicitly relies on assumptions that are accurate in lawyered courts but misplaced in lawyerless courts. For example, scholarship about ad hoc procedures in MDL litigation—which is heavily lawyered—assume the existence of lawyer-driven checks on judicial discretion. These checks help tailor ad hoc procedures to the needs of individual cases. But lawyerless courts lack such checks, enabling informal procedures developed for a particular lawyerless case to ossify into generally applicable norms. Analysis of informal rulemaking that omits lawyerless courts thus understates the systemic rather than case-specific role that lawyers play in shaping procedure.

Second, Bookman and Shanahan use e-notice to illustrate the value of “cross-pollination” between procedures in lawyered and lawyerless courts. Scholars have separately considered the value of e-notice in lawyered class actions and lawyerless individualized litigation. The Article contends that these inquiries should merge because each implementation of e-notice can inform its use in other contexts. This discussion of e-notice complements the authors’ prior discussion of ad hoc procedures. The case study of ad hoc procedures illustrates that differences between lawyered and lawyerless courts can be salient, while the case study of e-notice illustrates that facial differences can obscure deeper connections.

Third, the Article unites two parallel conversations about aggregation in civil litigation. In lawyered courts, aggregation often is a formal process governed by written rules. In contrast, lawyerless courts aggregate informally by applying streamlined procedures to similar cases. Yet in both contexts aggregation leads to similar results, such as extensive judicial management and formulaic settlements. Scholars have carefully studied each context separately but have rarely compared them. Bookman and Shanahan argue that concurrently analyzing both kinds of aggregation highlights how procedural norms implicitly assume the presence of lawyers. Articulating these norms more precisely might illuminate avenues for refining them in both contexts.

Bookman and Shanahan recognize that there is more to say about lawyerless adjudication. They hope to shape future conversations by integrating this often-marginalized topic into the mainstream of civil procedure discourse. Accordingly, they suggest that scholars writing and teaching about procedural policy and doctrine should consciously distinguish between lawyered and lawyerless courts. This approach would lead scholars to consider whether their analysis applies equally to both and, if not, whether the asymmetry is meaningful. Emphasizing how the adversarial system operates would also help scholars design procedures that “take advantage of lawyers’ presence while also functioning in their absence.” The Article’s thought-provoking defense of a new procedural lens is a welcome addition to the literature.

No Harm, No Foul? Privacy Law and Judicial Remedies

Feb 11, 2022 Fred O. Smith, Jr.Add a Comment

In Privacy Harms, Danielle Citron and Daniel Solove identify a central tension in the regulation of privacy in the United States. On one hand, federal law relies on litigation to address systemic depravations of privacy that, in the aggregate, compromise democracy, autonomy, and safety. On the other hand, federal litigation focuses on whether a specific litigant has experienced a concrete and particularized injury. Without demonstrating that the complainant has faced cognizable harm, there is no room to air the ways that undeterred, cumulative violations rip at the ties that bind us as a society.

The authors identify at least two ways that this judicial insistence on individualized injuries can facilitate systemic privacy harms.

Most directly, because courts sometimes fail to confer standing on plaintiffs for “mere” statutory violations, companies are sometimes not properly incentivized to comply with the law. The authors highlight the Supreme Court’s recent opinion in TransUnion v. Ramirez. Plaintiffs sued a credit reporting agency under the Fair Credit Reporting Act, alleging it wrongly accused them of being potential terrorists. The Court concluded that the plaintiffs were not harmed, and did not have standing, except in instances where the false information had been distributed to third parties. “No concrete harm, no standing,” the Court reasoned. Missing from this doctrinal picture is Congress’s systemic goal of encouraging credit reporting agencies to take reasonable steps to guard against inaccurate information on credit reports.

Second, courts’ insistence on specific, individualized harm means that even when a plaintiff does have standing, judicial proceedings and remedies are not necessarily tailored to airing and addressing the most urgent privacy harms. To gain access to federal court, some plaintiffs identify trivial financial harms as a pretext for more damaging (but highly generalized) harms. As Citron and Solove explain, “We have seen the emergence of an odd sort of legal fiction, where the law redresses ‘harm’ that is not the real interest interfered with as a means to redress a harm that really is.” By way of example, the authors describe a district court case in which plaintiffs sued Apple, alleging that the company violated its promises by failing to adequately prevent apps from non-consensually collecting plaintiffs’ personal data. According to the court, the plaintiffs had standing because the “unauthorized transmission of data from their iPhones taxed the phones’ resources by draining the battery and using up storage space and bandwidth.” But was battery drainage or used storage space the harm that the plaintiffs were concerned about? And does judicial focus on those trivial harms distract from what is at stake when a company breaks its promises and disseminates private information without permission?

Relatedly, the authors observe a disconnect between available remedies and the germane privacy harms at stake. Remedies generally fall into three categories: compensation (to redress an injury), deterrence (to discourage future injuries), and equity (to facilitate a return to the pre-violation status quo). But sometimes there is a mismatch between how privacy interests are enforced and the underlying goals of enforcement. Congress creates compensation schemes when it wants to deter widespread privacy harms. Compensation for financial harms might not express the value of privacy in ways that equitably promote psychological security and relational trust. The authors invite Congress, courts, and regulators to do a better job of tailoring enforcement schemes to enforcement goals.

To assist with this tailoring, the authors offer a typology of seven privacy harms. First are physical harms. Some violations of privacy interests—like reckless doxing of controversial individuals—can place people at increased of physical injury. Second are economic harms of the sort the Court is poised to recognize. Theft of one’s personal information, for example, places a person at increased risk of identity theft. Third are reputational harms. Fourth, are psychological harms, such as emotional distress and disturbance. Fifth are violations of privacy, which can undermine individual choice and autonomy. Sixth are privacy breaches that can facilitate discrimination. The authors reason, “The misuse of personal data can be particularly costly to women, sexual minorities, and nonwhites given the prevalence of destructive stereotypes and the disproportionate surveillance of women and marginalized communities in their intimate lives.” Seventh are harms to relationships, which “are two-fold: most immediately, the loss of confidentiality and in the longer term, damage to the trust that is essential for the relationship to continue.”

The authors recognize countervailing interests. Redressing and preventing privacy harms must be balanced with the effect of, for example, allowing thousands of people to bring suit for a single violation in a way that might cause a defendant damage that is highly disproportionate to the offense. But striking the right balance requires thinking critically about enforcement goals and about the harms at stake. Citron and Solove have offered an important contribution by providing a cogent critique of the pitfalls of the federal litigation in privacy cases; articulating harms that might assist litigants and courts wrestling with which privacy interests should be cognizable; and calling for lawmakers to ensure that protection of privacy occurs in precise and effective ways.

“Day-in-Court Theater” in Eviction Court

Jan 27, 2022 Robin J. EffronAdd a Comment

Proceduralists debate what procedures a system of civil justice ought to have and what rules and doctrines best actualize these procedures. We do not, however, pause enough to ask, “in the real world of courts and dispute resolution, do these rules and procedures do what we think they are doing?” Lauren Sudeall and Daniel Pasciuti contribute to the growing literature of quantitative and qualitative empirical studies of what happens inside American courtrooms by observing and analyzing the inner workings of dispossessory (eviction) courts in Georgia.

Sudeall and Pasciuti provide a detailed account of dispossessory courts in three counties – a large suburban county, a large rural county, and a small rural county. They shed needed light into the proverbial “black box.” I guess many legal academics have scant knowledge of the workaday life of state courts, and fewer still of specialized and small claims courts. For those who have spent time in these arenas, Praxis and Paradox demonstrates the wide variance between courts within the same state with a nominally uniform set of substantive and procedural laws. To know one housing court is not to know them all.

Much of what Sudeall and Pasciuti describe takes place in lawyerless courts. Tenants were unrepresented by counsel in roughly 99% of cases. The representation of landlords, on the other hand, varied by county but was still quite low—County S (the suburban county) had the highest level of landlord representation with 12.2% of landlords represented by counsel. The landlords, often repeat players, viewed the cases as straightforward factual matters in which representation was rarely worth its cost. Tenants reported feeling that a lawyer might have been helpful, although few were aware of the legal services programs that might have provided some assistance.

It is against this background that the authors report key findings about litigants’ perceptions of justice and procedural fairness. Landlords may have slightly overestimated their litigation abilities and procedural advantages. Tenants had different experiences of self-representation and procedural fairness. Tenants reported feeling that they would have benefited from assistance in comprehending aspects of the proceedings and in expressing themselves to the court. The perceived unfairness was systemic rather than individual; they believed “they were treated in a fair and reasonable manner by the individual actors. But when asked whether they thought the procedure and proceedings themselves were fair, they balked, suggesting “a sense that the structures undergirding the process were fundamentally unjust.” That litigants could discern the gap between fair treatment as individuals and systemic unfairness is telling—fair and respectful treatment is not a substitute for tenants’ perception that the underlying substantive law is stacked against them and that the larger constellation of procedures does not favor their interests.

These sentiments will not surprise access-to-justice scholars. The typical scholarly reaction to these findings is to demand promulgation and enforcement of more and better procedures. But Paradox and Praxis suggests that we ought to hit the brakes before following that instinct. Sudeall and Pasciuti find a gap between procedures that lawyers (and law professors!) think will facilitate better outcomes and the actual effect of these procedures, concluding that “[e]lements of the process we tend to assume would be beneficial to litigants or associate with fair judicial process—such as filing an answer…, scheduling an individual hearing on the merits, and providing tenants with the opportunity to tell their story in court—do not always manifest as expected or lead to better substantive tenant outcomes.”

The access-to-justice community would do well to heed this warning. In much theoretical and doctrinal literature, affording parties their “day in court” is the holy grail of procedural reform. Paradox and Praxis instructs that we should not discount this value altogether. Litigants spoke positively about the opportunity to tell their story even if it did not seem to affect the outcome of the proceeding, and court personnel spoke with pride about the degree (differing among the three counties) that they prioritized giving tenants their day in court and providing a forum in which they could explain their position. But some court-access measures appear disconnected from the merits or larger procedural values, if not counterproductive to the ends that they are supposed to serve. For example, courts provide form answers, some of which allow tenants to choose responses that “provide[d] no legally cognizable defense” such as the inability to pay rent because of lack of funds. With other examples and findings, this paints a picture of “day-in-court theater,” in which the superficial appearance of procedure masks deeper deficits in procedural structures and underlying substantive housing law and policy.

Praxis and Paradox is a must-read for practitioners and scholars whose work is unlikely to take them inside the black box of lawyerless courts.

The Roberts Court’s Legacy in Class Action Jurisprudence

Jan 10, 2022 Jasminka KalajdzicAdd a Comment

The rise in class action litigation has garnered significant scholarly and judicial attention over the past several decades, particularly in the United States. The Supreme Court of the United States under Chief Justice Roberts is perceived to be wary of, if not hostile to, class actions. A new paper by Richard Freer sheds light on the precise ways the Roberts Court has affected class action jurisprudence. The Court has released an average of more than two class action decisions a year since 2010, and in so doing, has revolutionized class action practice.

Freer offers a retrospective on three areas of jurisprudence that makes plain the important role the Roberts Court has played in class actions, especially over the past decade. He categorizes decisions as ‘revolutionary’, ‘evolutionary’ or ‘work to be done’. By analyzing the corpus of cases in this way, Freer provides a compelling account of the Court’s engagement with key class action issues.

The first category describes the revolutionary effect of Wal-Mart Stores, Inc. v Dukes. The Court rejected 35 years of lower-court interpretations of Eisen v. Carlisle & Jacquelin by requiring district judges to assess evidence relating to class certification, even if the evidence also bears on the merits of the action. The class representative must provide “significant proof” to the judge who undertakes a “rigorous analysis.” The Court also hinted that expert witnesses at the certification hearing must meet the Daubert requirements. Freer observes that lower courts “have treated this hint as a command” and that the combination of the evidentiary rule and the higher evidentiary standard has resulted in expensive certification processes.

Wal-Mart also breathed new life into the commonality requirement under Rule 23(a)(2), which historically had not been a difficult threshold to overcome. The majority’s approach “shifted the focus from common questions to common answers: there must be a common issue in the case such ‘that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” This heightened commonality requirement has led to greater attention to Rule 23(a)(2) and to increased denials of class certification.

In the second category, Freer documents the evolution of Roberts Court case law on fraud-on-the-market class actions that has created new hurdles for shareholder plaintiffs. The fraud-on-the-market theory posits that shareholders’ reliance on a corporation’s public misrepresentations will be presumed so long as the class representative can demonstrate that the securities are traded in an efficient public market. The Court affirmed the theory in a number of cases, starting with Erica P. John Fund, Inc. v. Halliburton Co., continuing with Amgen, Inc. v. Connecticut Retirement Plans & Trust Funds, and most recently with Goldman Sachs Grp., Inc. v Arkansas Teacher Retirement Sys in June 2021. But in two decisions–Halliburton II and Goldman Sachs–the Court added the requirement that the misrepresentation had a price impact, even though the Court in Amgen had concluded that the representative need not prove the misrepresentation was material. Freer rightfully points out that the Court has ignored the relationship between price impact and materiality and has opened the door to a full-blown evidentiary inquiry at certification even further.

Finally, the Roberts Court has raised, but not answered, important questions in three areas of class action jurisprudence. First, class representatives must have standing under Article III of the Constitution even if they have a private right of action pursuant to a statute, but the Court has provided little guidance on the relationship between statutory and constitutional standing in Rule 23 cases. Second, the Court has not addressed questions of mootness, even when given the opportunity to do so in Campbell-Ewald Co v. Gomez. The Court did not answer whether an unaccepted settlement offer in the full amount of the class representative’s loss renders their claim moot and non-justiciable as a matter of constitutional law. Relatedly, it failed to explain whether that representative retains an interest that would permit them to argue that the class should be certified. Freer lists a number of issues that flow from these questions and warrant the Court’s attention. Lastly, though Roberts has stated that he has “fundamental concerns” about the use of cy pres remedies in class settlements, the Court did not seize the opportunity to clarify the limits of the doctrine in Frank v. Gaos. In all three–standing, mootness and cy pres–the Court has “staked out some topics on which its real work has yet to begin.”

In his succinct paper, Freer confirms the prevailing view among class action scholars that the Roberts Court has been active on class action issues and has made certification more difficult. Should the Court take up the work it has left uncompleted, the evolution – perhaps even revolution – of class actions will be one of its lasting legacies.