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- Title
Out of the "Black Hole": Toward a New Approach to MDL Procedure.
- Authors
Forster, Thomas H. L.
- Abstract
Multidistrict litigation (MDL) allows the consolidation of claims in a single forum. Usually, these suits share common facts but involve individual liability questions that prevent class-action certification. Under 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation (JPML) may transfer and consolidate all pending actions before its chosen judge. In turn, the MDL judge coordinates "pretrial proceedings" and is instructed to remand the consolidated claims at their conclusion. MDL is a fundamental part of the federal docket. When prisoner and social-security cases are removed, MDL constitutes more than 50% of actions pending in U.S. District Courts. But little procedural law constrains MDL. Many scholars critique MDL. Most often, skeptics argue that MDL reduces a plaintiff's control over her claim. Some suggest that MDL undermines procedural-justice protections and prioritizes compensation over individual dignity. However, practitioners generally approve of MDL. Defendants complete discovery and motion practice in a single forum, plaintiffs enjoy economies of scale that balance the scales against well-financed defendants, and courts avoid repeatedly resolving the same issue in suits across the country. Academic criticism, then, often fails to take seriously the practical merits of nonclass aggregate litigation. While scholars critique MDL for denying plaintiff autonomy and shortchanging procedural justice, less attention has been devoted to MDL procedural reform. A principled approach, attentive to MDL as practiced, is needed. This Note provides a starting point. It proposes an analytical framework that is party-neutral and responsive to MDL's purpose in practice. It uses this new approach to consider an important threshold question: whether MDL practice would tend to benefit more from procedure in the form of rules or in the form of standards. It then evaluates two proposals for reformâ€"plaintiff fact sheets and interlocutory reviewâ€"to demonstrate a more appropriate approach to MDL procedure. At base, I call for a more robust and substance-sensitive dialogue on procedural reform in MDL.
- Subjects
PROCEDURAL justice; MULTIDISTRICT litigation; PRE-trial procedure; LAW reform; PLAINTIFFS
- Publication
Texas Law Review, 2022, Vol 100, Issue 6, p1227
- ISSN
0040-4411
- Publication type
Article