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- Title
THE OTHER SHADOW DOCKET: THE JPML’S POWER TO STEER MAJOR LITIGATION.
- Authors
Sturiale, Jennifer E.
- Abstract
Multidistrict litigation has become an increasingly important tool for aggregating claims. Whether an MDL is created in the first place is decided by a seven-member panel of federal judges, the Judicial Panel on Multidistrict Litigation (“JPML”). But the JPML decides not only whether to create an MDL; it decides also where and before whom to centralize MDLs for coordinated or consolidated pretrial proceedings. In deciding where and to whom to transfer cases arising under federal law, the JPML can consider the choice-of-law rule applicable in the transferee court. Under the dominant rule among federal courts, the MDL court applies its own law. As a practical matter, this means that the JPML has the power to steer an MDL to a particular court and to a particular judge, mindful of the law that will apply and how that law will affect the outcome of the case. Such a practice is not only contrary to a well-established norm against “matching” judges and cases. It also endows the JPML with an outsized power over these suits. This Article uncovers this largely ignored and considerable power of the JPML that enables it to achieve substantive ends through the nation’s MDL dockets. It evaluates two alternative choice-of-law rules. But, more importantly, it proposes that federal judges be randomly assigned to preside over MDLs—a solution that is more likely to be effective.
- Subjects
MULTIDISTRICT litigation; FEDERAL judges; PRE-trial procedure; FEDERAL courts; FEDERAL jurisdiction
- Publication
University of Illinois Law Review, 2023, Vol 2023, Issue 1, p105
- ISSN
0276-9948
- Publication type
Article