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Volume 105

Article

MDL as Category

Zachary D. Clopton, Professor of Law, Northwestern Pritzker School of Law

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15 Jul 2020

Multidistrict litigation (MDL) dominates the federal civil docket. MDL has been used to consolidate hundreds of thousands of cases, including with respect to asbestos, the BP oil spill, Johnson & Johnson baby powder, NFL concussions, opioids, and more. In recent years, MDL has attracted the attention of reformers and scholars, who have offered proposals for rules or practices that would apply to all MDLs, and to only MDLs.

These proposals are premised on a fundamental error about what MDL is. Using quantitative and qualitative data, case studies, and interviews with judges, this Article demonstrates that reformers and scholars have made a mistake about what defines the category “MDL.” MDL is not a uniform category of large civil cases demanding one-size-fits-all procedure. Recent proposals for MDL-specific rules, therefore, are misguided. Indeed, because such proposals would create incentives for parties to “procedure shop” into or out of MDL, they imperil horizontal equity and invite abuse. Proposals for MDL-specific rules thus risk exacerbating existing problems in MDL and creating new problems that were not there before.

That said, MDL is a coherent category with respect to the way MDLs are created. Every MDL is created by the Judicial Panel on Multidistrict Litigation (JPML), a group of seven judges hand picked by the Chief Justice, who have the nearly unconstrained authority to decide whether to consolidate cases and to which federal judge to assign them. Yet despite
this unusual and highly consequential procedure, reformers and scholars have paid scant attention to the JPML. Having dispensed with the initial MDL categorization error, this Article also examines the understudied role of the JPML and offers suggestions for JPML reform consistent with a clearer description of what MDL is.

To read more, click here: MDL as Category.

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