Monday, September 6, 2010
Andrew S. Pollis (Case Western Reserve University School of Law has posted The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation to SSRN.
Multidistrict litigation, or “MDL,” is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, more than a third of all pending civil cases in federal court are part of an MDL proceeding, and the resulting efficiency is indisputable.
But the efficiency comes at great—and largely overlooked—cost. Because a single judge renders all the important legal decisions in each MDL with virtually no scrutiny from other trial judges, one instance of pretrial legal error can have immediate and sweeping impact on thousands of cases and on the evolution of the law. And, because most types of interlocutory appeals go forward only if the trial and appellate courts permit them, the right of appeal is not an adequate protection against pretrial error in the MDL context. Ultimately, MDL cases tend to settle rather than proceed to final judgment, so the appellate courts rarely have an opportunity to clarify the law, and the settlements are often mispriced as a result of the uncertainty.
It is time to restore the balance of judicial power. This article argues for an expansion of non-discretionary interlocutory appellate jurisdiction over certain legal rulings rendered in MDL cases. To qualify, the order should involve a pure issue of law in an unsettled area or in contravention of established precedent, and immediate appellate review should be potentially dispositive of a significant number of cases in the MDL. The guaranteed availability of immediate review in these circumstances, as in any expansion of appellate jurisdiction, would not come without costs. But the benefits would far outweigh them. Indeed, the right of immediate appeal would ensure the integrity of the MDL process on which our legal system has come so heavily to depend.