The Looming Battle for Control of Multidistrict Litigation in Historical Perspective

2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in this Article is to shed light on the reasons the Multidistrict Litigation Act was constructed as it was and suggest that those engaged in the current debate ask, after becoming informed by available data, whether those reasons have lost any of their currency. I also offer some tenuous predictions about the path forward, recognizing that the prediction business is a dangerous one in the current political climate. First, I review the history to explain why the MDL framework was built without Rules Committee involvement. Then, I fast-forward to the present day and discuss briefly the nascent proposals to either amend the MDL statute or provide for Federal Rules of Civil Procedure for MDL. Finally, I conclude by assessing the current debate and make some suggestions as this debate winds its way forward. In 1968, the small cadre of judges who developed and fought for the MDL statute won the battle for procedural power. Today, fifty years later, the MDL statute continues to operate as they imagined. However, with success comes scrutiny, and what had been settled is now once again up for debate

Resolving Intrastate Conflicts of Laws: The Example of the Federal Arbitration Act

Choice-of-law analysis is typically thought of as confined to the multistate setting. This is a mistake. To the contrary, conflicts often appear between statutes of a single state. Unfortunately, courts do not see these cases as “choice-of-law” cases. They see them only as problems of statutory interpretation and ignore conflicts of laws instead of resolving them, either by construing the conflicting statutes independently or applying a canon of construction. Here, I examine the benefits of importing choice-of-law tools—particularly the tools of governmental-interest analysis—into the resolution of intrastate conflicts of laws. When two laws promulgated by the same sovereign clash, governmental-interest analysis is a promising approach to resolve the conflict. It is promising not only because it offers a path toward more rational results, but also because it highlights conflicts, requires courts to make explicit their policy preferences, and potentially prompts legislative dialogue. After suggesting how interest analysis might work to resolve intrastate conflicts of laws, I turn to a specific example of such a conflict: the Supreme Court’s decision last term in American Express Co. v. Italian Colors Restaurant, in which the Court held, 5–4, that the Federal Arbitration Act commanded enforcement of an arbitration clause that rendered the defendant’s alleged antitrust violations practically unenforceable. Although the Court did not say so, Italian Colors was a choice-of-law case. Use of choice-of-law methodology would have laid bare the conflict and provided a more direct path to its resolution. Italian Colors, therefore, provides an example of the opportunities available in using choice-of-law analysis to resolve intrastate conflicts

The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation

The article focuses on the U.S. Supreme Court\u27s approach in two cases Klaxon Co. v. Stentor Elec. Mfg. Co. and Van Dusen v. Barrack, regarding direct filing, aggregation litigation and choice of law in multidistrict litigation (MDL). It mentions that MDL is very high in federal courts specifically in places of mass wrongdoings or product liability. It explores that the traditional MDL framework is more appropriate with the policies underlying in these cases than the class action

The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation

The article focuses on the U.S. Supreme Court\u27s approach in two cases Klaxon Co. v. Stentor Elec. Mfg. Co. and Van Dusen v. Barrack, regarding direct filing, aggregation litigation and choice of law in multidistrict litigation (MDL). It mentions that MDL is very high in federal courts specifically in places of mass wrongdoings or product liability. It explores that the traditional MDL framework is more appropriate with the policies underlying in these cases than the class action

The Long Arm of Multidistrict Litigation

Nearly 40 percent of the civil cases currently pending in federal court—now over 130,000—are part of a multidistrict litigation, or MDL. In MDL, all cases pending in federal district courts around the country sharing a common question of fact, such as the defectiveness of a product or drug, are transferred to a single district judge for consolidated pretrial proceedings, after which they are supposed to be remanded for trial. But the reality is that less than 3 percent are ever sent back because the cases are resolved in the MDL court, either through dispositive motion or mass settlement. Surprisingly, despite the fact that the MDL court is where all of the action in these cases typically happens, that court need not have personal jurisdiction over the plaintiffs or the defendants under the rules that would apply were the cases being litigated one-by-one. Indeed, even as the Supreme Court has clamped down on personal jurisdiction in recent years, the personal jurisdiction exercised in MDL has avoided rigorous analysis for reasons that do not survive scrutiny. In this Article, I examine how and why MDL has avoided these fundamental questions and suggest a new way of analyzing MDL jurisdiction under the Fifth Amendment’s Due Process Clause, focusing on the interests that the doctrine of personal jurisdiction attempts to serve, especially the assurance of a forum that provides a fair opportunity to participate. In particular, I explore the possibility of justifying MDL on the basis of a national shared interest in efficient dispute resolution, so long as such analysis adequately takes into account the interests of the parties in a convenient forum. In so doing, I hope to focus the discussion of jurisdiction in MDL—and of MDL generally—away from the fiction of “limited transfer” and to the reality of aggregated, unitary litigation

MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try. In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation—and, indeed, it risks harming the national tort system more generally

Aggregation on Defendants\u27 Terms: \u3cem\u3eBristol-Myers Squibb\u3c/em\u3e and the Federalization of Mass-Tort Litigation

Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s home turf or in federal multidistrict litigation (MDL). Faced with this choice, we believe that most plaintiffs will turn to MDL. The result will be the culmination of a trend toward the federalization of mass-tort litigation in MDL, which has already grown to make up an astonishing one-third of the federal civil docket. In this Article, we examine why Bristol-Myers will have this effect and explain how MDL’s hybrid structure facilitates centralized mass-tort litigation in federal court, even as the Court’s restrictive view on personal jurisdiction prevents similar aggregation in state court. MDL cuts this Gordian knot by formally adhering to the vision of vertical and horizontal federalism underlying both diversity jurisdiction and Bristol-Myers, while also paradoxically undermining that vision in service of mass resolution. As a result, even more power over mass-tort litigation will be centralized in the hands of the MDL judge and the lead lawyers the judge selects to run the litigation—a prospect that comes with both opportunities and risks

MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases — and we suspect that, sooner rather than later, one of these parties might give MDL a try. In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation — and, indeed, it risks harming the national tort system more generally