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

Discovery of Two Simultaneous Kilohertz Quasi-Periodic Oscillations in KS 1731-260

We have discovered two simultaneous quasi-periodic oscillations (QPOs) at 898.3+/-3.3 Hz and 1158.6+/-9.0 Hz in the 1996 August 1 observation of the low-mass X-ray binary KS 1731-260 with the Rossi X-ray Timing Explorer. The rms amplitude and FWHM of the lower frequency QPO were 5.3+/-0.7 % and 22+/-8 Hz, whereas those of the higher frequency QPO were 5.2+/-1.0 % and 37+/-21 Hz. At low inferred mass accretion rate both QPOs are visible, at slightly higher mass accretion rate the lower frequency QPO disappears and the frequency of the higher frequency QPO increases to ~1178 Hz. At the highest inferred mass accretion rate this QPO is only marginally detectable (2.1 sigma) near 1207 Hz, which is the highest frequency so far observed in an X-ray binary. The frequency difference (260.3+/-9.6 Hz) between the QPOs is equal to half the frequency of the oscillations observed in a type I burst in this source (at 523.92+/-0.05 Hz, Smith, Morgan and Bradt 1997). This suggests that the neutron star spin frequency is 261.96 Hz (3.8 ms), and that the lower frequency QPO is the beat between the higher frequency QPO, which could be a preferred orbital frequency around the neutron star, and the neutron star spin. During the 1996 August 31 observation we detected an additional QPO at 26.9+/-2.3 Hz, with a FWHM and rms amplitude of 11+/-5 Hz and 3.4+/-0.6 %.Comment: 6 pages including 3 figures, Astrophysical Journal Letters, in press (issue 482

Dissonance and Distress in Bankruptcy and Mass Torts

This Essay reviews the highly successful Fordham Law Review symposium entitled Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy, held in 2022. The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both. The symposium was successful because it brought these groups into conversation at a time when high-profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in. The symposium was also successful—and distressing, in our view—because it highlighted disturbing trends in complex litigation. This Essay makes two principal observations. First, we document the different ways that MDL and bankruptcy players view their institutions. Even if they share similar goals of achieving lasting resolutions to mass tort disputes, they come from different starting points and stress different values. Civil litigators, including those who work in MDLs, hue to traditional notions of victims, liability, and adversarial adjudication. Bankruptcy lawyers, meanwhile, focus more on creditors, preserving value, and moving on. Second, we demonstrate that criticisms of MDL’s treatment of individual plaintiffs—both in the symposium and outside it—are being leveraged by defense-side interests seeking to promote bankruptcy as a means of resolving mass torts. Taken together, these two observations reveal a dissonance between the seemingly pro-plaintiff criticisms of MDL and the seemingly pro-defendant use of those criticisms to denigrate MDL in favor of bankruptcy

Kilohertz QPO Peak Separation Is Not Constant in Scorpius X-1

We report on a series of twenty ~10^5 c/s, 0.125 msec time-resolution RXTE observations of the Z source and low-mass X-ray binary Scorpius X-1. Twin kilohertz quasi-periodic oscillation (QPO) peaks are obvious in nearly all observations. We find that the peak separation is not constant, as expected in some beat-frequency models, but instead varies from ~310 to ~230 Hz when the centroid frequency of the higher-frequency peak varies from ~875 to ~1085 Hz. We detect none of the additional QPO peaks at higher frequencies predicted in the photon bubble model (PBM), with best-case upper limits on the peaks' power ratio of 0.025. We do detect, simultaneously with the kHz QPO, additional QPO peaks near 45 and 90 Hz whose frequency increases with mass accretion rate. We interpret these as first and second harmonics of the so-called horizontal-branch oscillations well known from other Z sources and usually interpreted in terms of the magnetospheric beat-frequency model (BFM). We conclude that the magnetospheric BFM and the PBM are now unlikely to explain the kHz QPO in Sco X-1. In order to succeed in doing so, any BFM involving the neutron star spin (unseen in Sco X-1) will have to postulate at least one additional unseen frequency, beating with the spin to produce one of the kHz peaks.Comment: 6 pages including 3 figure