The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation

Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law—and does so with virtually no scrutiny from other judges. This power centralization promotes efficient case management, but it can be an anathema to our conception of decentralized justice. One instance of unreviewable pretrial error can have immediate and sweeping impact on thousands of cases in one fell swoop. It is time to restore the balance of judicial power. This Article argues for an expansion of non-discretionary interlocutory appellate jurisdiction over certain legal rulings rendered in MDL cases. Any opportunity to appeal before the end of the case reflects an inherent value judgment that the immediate rights at stake outweigh the burdens that interlocutory review imposes on the courts. The discretionary approach to interlocutory appellate jurisdiction has proven generally adequate. But it is not adequate in the context of MDL proceedings, where the risks and consequences of legal error are heightened considerably. Ultimately, MDL cases tend to settle rather than proceed to final judgment, so the appellate courts rarely have an opportunity to clarify the law, and the settlements are often mispriced as a result of the uncertainty. The absence of appellate review also deprives our jurisprudence of one of its central features—the back-and-forth negotiation of legal principles that occurs when multiple jurists grapple with the same legal questions. Certain interlocutory MDL orders, then, warrant mandatory appellate jurisdiction. To qualify, the order should involve a pure issue of law in an unsettled area or in contravention of established precedent, and immediate appellate review should potentially be dispositive of a significant number of cases in the MDL. The guaranteed availability of immediate review in these circumstances would not come without costs, but the benefits would far outweigh them. Indeed, the right of immediate appeal would ensure the integrity of the MDL process on which our legal system has come so heavily to depend

The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation

Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law—and does so with virtually no scrutiny from other judges. This power centralization promotes efficient case management, but it can be an anathema to our conception of decentralized justice. One instance of unreviewable pretrial error can have immediate and sweeping impact on thousands of cases in one fell swoop. It is time to restore the balance of judicial power. This Article argues for an expansion of non-discretionary interlocutory appellate jurisdiction over certain legal rulings rendered in MDL cases. Any opportunity to appeal before the end of the case reflects an inherent value judgment that the immediate rights at stake outweigh the burdens that interlocutory review imposes on the courts. The discretionary approach to interlocutory appellate jurisdiction has proven generally adequate. But it is not adequate in the context of MDL proceedings, where the risks and consequences of legal error are heightened considerably. Ultimately, MDL cases tend to settle rather than proceed to final judgment, so the appellate courts rarely have an opportunity to clarify the law, and the settlements are often mispriced as a result of the uncertainty. The absence of appellate review also deprives our jurisprudence of one of its central features—the back-and-forth negotiation of legal principles that occurs when multiple jurists grapple with the same legal questions. Certain interlocutory MDL orders, then, warrant mandatory appellate jurisdiction. To qualify, the order should involve a pure issue of law in an unsettled area or in contravention of established precedent, and immediate appellate review should potentially be dispositive of a significant number of cases in the MDL. The guaranteed availability of immediate review in these circumstances would not come without costs, but the benefits would far outweigh them. Indeed, the right of immediate appeal would ensure the integrity of the MDL process on which our legal system has come so heavily to depend

The Death of Inference

This Article examines a disturbing trend in civil litigation: the demise of the jury’s historic prerogative to draw inferences from circumstantial evidence. Judges have arrogated to themselves the power to dismiss cases if they find the proffered inferences factually implausible. They have increasingly dismissed cases under the “equal-inference rule” by finding the proffered inferences no more plausible than other available inferences. And they have severely limited the powerful inferences jurors can draw when they conclude that a witness has lied. Commentators have bemoaned the heightened-pleading standard of the 2007 and 2009 U.S. Supreme Court cases, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, but that heightened standard is only one slice of a larger pattern of power reallocation that has diminished the jury’s role in evaluating circumstantial evidence. The problem is particularly acute in cases involving defendants’ subjective states of mind, where defendants typically have both exclusive control over the direct evidence and a motive to conceal the truth. Instead of testifying live before a diverse group of factfinders, defendants can avoid liability by hiding their demeanor in a paper record submitted only to a judge. This Article proposes a three-tiered solution that would revest juries with inferencedrawing power in state-of-mind cases while simultaneously instilling protections against the perceived costs of jury trials. The proposed solution ensures that state-of-mind cases may always proceed to discovery and trial. But it also allows for fee shifting to dissuade plaintiffs and their attorneys from pursuing weak cases and encourages judges to invoke more frequently their existing power to order retrial of cases in which verdicts appear to be incorrect

Fixing the Broken System of Assessing Criminal Appeals for Frivolousness

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so. Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a sufficient advocate. The system is broken, but the solution is simple: a multi-tiered process of counsel review. If three competent lawyers, adequately incentivized by compensation, all agree that there is no basis for appeal, the court should permit withdrawal and consider the right to appellate counsel satisfied. Lawyers need not betray the clients, and courts need not get involved. The client, while still lacking a lawyer willing to pursue the appeal, has nevertheless had a sufficient substitute for purposes of the right to appellate counsel

The Appellate Judge as the Thirteenth Juror: Combating Implicit Bias in Criminal Convictions

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias. Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of appellate judges to review jury verdicts gone awry, even when the evidence is legally sufficient. The operation of implicit bias in jury deliberations only enhances the need for this review. But the review must be more robust than traditional three-judge panels can offer. Judges, too, fall victim to implicit bias, including bias in favor of affirming trial-court results. And the demographics of judges do not reflect those of the populations they serve. So requiring two of three judges to concur in reversing on a factual review is too high a burden to achieve the necessary reduction in bias-influenced wrongful convictions. Each individual judge should have that power. The benefits to the justice system outweigh the costs

Fixing the Broken System of Assessing Criminal Appeals for Frivolousness

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so. Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a sufficient advocate. The system is broken, but the solution is simple: a multi-tiered process of counsel review. If three competent lawyers, adequately incentivized by compensation, all agree that there is no basis for appeal, the court should permit withdrawal and consider the right to appellate counsel satisfied. Lawyers need not betray the clients, and courts need not get involved. The client, while still lacking a lawyer willing to pursue the appeal, has nevertheless had a sufficient substitute for purposes of the right to appellate counsel

Civil Rule 54(b): Seventy-Five and Ready for Retirement

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative. When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determine[in] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants who would otherwise have to await the conclusion of the entire case to appeal an adverse ruling. But the Rule has spawned seventy-five years of chaos. Appellate courts, in examining their jurisdiction to review an order certified under Rule 54(b), struggle to evaluate whether the order fully adjudicates a discrete and severable claim. They struggle to evaluate what “no just reason for delay” really means. And they struggle to articulate consistent standards for district courts to follow in making the required “express determine[action].” At the heart of the problem lies a power clash: Rule 54(b) puts the district court in charge of deciding when an appellate court is required to hear an appeal. Not surprisingly, appellate courts often resist. And the resistance often comes only after full briefing and oral argument. It is time to end the struggle. And a better solution exists. This Article advocates the repeal of Rule 54(b) and, in its place, a resort to a discretionary-appeal system to permit trial courts to certify certain orders for immediate appeal and to permit appellate courts to decide whether to hear them

The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation

Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law - and does so with virtually no scrutiny from other judges. This power centralization promotes efficient case management, but it can be an anathema to our conception of decentralized justice. One instance of unreviewable pretrial error can have immediate and sweeping impact on thousands of cases in one fell swoop. It is time to restore the balance of judicial power. This Article argues for an expansion of non-discretionary interlocutory appellate jurisdiction over certain legal rulings rendered in MDL cases. Any opportunity to appeal before the end of the case reflects an inherent value judgment that the immediate rights at stake outweigh the burdens that interlocutory review imposes on the courts. The discretionary approach to interlocutory appellate jurisdiction has proven generally adequate. But it is not adequate in the context of MDL proceedings, where the risks and consequences of legal error are heightened considerably. Ultimately, MDL cases tend to settle rather than proceed to final judgment, so the appellate courts rarely have an opportunity to clarify the law, and the settlements are often mispriced as a result of the uncertainty. The absence of appellate review also deprives our jurisprudence of one of its central features - the back-and-forth negotiation of legal principles that occurs when multiple jurists grapple with the same legal questions. Certain interlocutory MDL orders, then, warrant mandatory appellate jurisdiction. To qualify, the order should involve a pure issue of law in an unsettled area or in contravention of established precedent, and immediate appellate review should potentially be dispositive of a significant number of cases in the MDL. The guaranteed availability of immediate review in these circumstances would not come without costs, but the benefits would far outweigh them. Indeed, the right of immediate appeal would ensure the integrity of the MDL process on which our legal system has come so heavily to depend

Enforcing the Fiduciary Duties of Class Representatives: A Response to Professors Green and Kent

Response to Bruce A. Green & Andrew Kent’s, May Class Counsel Also Represent Lead Plaintiffs