The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion

Abstract

Under the federal multi-district litigation (MDL) statute, when there are federal civil actions pending in more than one district — involving one or more common questions of fact — a special panel of seven federal judges may centralize the cases before a single federal judge for pretrial proceedings. This panel, which is selected by the Chief Justice of the United States, is known as the Judicial Panel on Multidistrict Litigation (JPML). Although the stated purpose of the MDL statute is to achieve judicial efficiency in pretrial proceedings, the reality is that only about three percent of the cases end up being transferred back to the transfer-or courts for trial. The other 97 percent are resolved by the MDL judge, either through settlement or dismissal. Moreover, a substantial percentage of the federal civil docket consists of MDL cases. Thus, the JPML’s decisions regarding: (1) whether to create an MDL, and (2) which federal judge should oversee the cases (assuming the cases are deemed suitable for an MDL), have profound consequences for our civil justice system. Although attorneys and scholars have offered numerous reform proposals involving the MDL process, those proposals have all been focused on the functions and powers of the MDL judge, not the decisions of the JPML. This lack of focus on the JPML process is surprising, given the JPML’s crucial role. It is especially surprising because the statute provides few criteria to govern the JPML’s decisions, and it provides for only limited mandamus review of JPML orders. Indeed, only once in the statute’s 52-year history has an appellate court issued a writ of mandamus overturning an order of the JPML. Section I of this article explains that the decision whether to create an MDL, and the selection of the MDL judge, are heavily fact-intensive, and are undertaken without clear guidelines or consistent reasoning. A factor that the JPML finds to be important in one case may be given little weight in another, and in many cases it is difficult to predict how the JPML will rule. Yet, this article concludes in Section II that any attempt to codify detailed criteria to govern the JPML’s decision-making would be extremely difficult, and ultimately self-defeating. As the article notes, the JPML is doing an excellent job, and there is no need to adopt more rigid criteria to govern its decisions or more liberal avenues for appellate review.