Monday, February 22, 2021
Abbe R. Gluck (Yale University), Elizabeth Chamblee Burch (University of Georgia), MDL Revolution; N.Y.U. L. Rev. (2021):
Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale.
Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to it—MDL is finally in public view. State attorneys general have resisted the opioid MDL’s intense nationalism, its relentless drive to global settlement, its wild procedural innovation, its blurring of differences across state law and its dramatic assertions of jurisdictional authority. Opiates is the most extraordinary MDL yet, but most big MDLs share many of its features, and Opiates is already the roadmap for the next mega-cases.
Opiates is the instantiation of what we call the “MDL Paradox.” By the terms of its authorizing statute and as a matter of its constitutional authority, MDL is designed for individual cases—giving similar suits filed in different districts an efficient pretrial process before sending them home to their own lawyers, courts, state laws, and appellate processes. In reality, that is pure fiction. Few cases ever return home. And the MDL’s mode of coordination—from its anti-federalism stance to its insistence that each proceeding is too unique to be confined by the Federal Rules—chafes at almost every aspect of procedure’s traditional rules and values. MDL is not-so-secretly changing the face of civil procedure.
This Article weaves together for the first time all of these exceptional features of MDL and how they disrupt procedure’s core assumptions.
We also offer the first comprehensive analysis of the historic suits over the opioid crisis. Opiates is the first MDL that pits localities against their own state attorneys general in a struggle for litigation control. Its judge has publicly stated that solving a national health crisis that Congress dumped in his lap is different from ordinary litigation. It has even invented a new form of class action. It is hyperdialectical, jurisdictionally competitive, outcome-oriented, repeat-player-rich, fiercely creative procedure.
MDL begs the question: What do we expect of litigation on this scale?
We can recognize important gaps that MDL fills but reintroduce strong norms of process and sovereignty. We suggest specific shifts—from more pretrial motions to new paths for appellate review, attorney selection, and jurisdictional redundancy—where the normative balance seems particularly out of whack; shifts we believe are in line with the spirit of Federal Rule 1’s own inherent paradox—the ideal of “just, speedy and inexpensive procedure.”