MDL as Category

Abstract

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 categorization error with respect to 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. In this way, proposals for MDL-specific rules 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 handed 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 examines the understudied role of the JPML and offers suggestions for JPML reform consistent with a clearer description of what MDL is.