TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, August 21, 2020

Burch & Williams on Judicial Adjuncts in MDLs

Elizabeth Chamblee Burch & Margaret Williams have posted to SSRN Judicial Adjuncts in Multidistrict Litigation.   The abstract provides:

Peeking under the tent of our nation’s largest and often most impactful cases — like opioids and pelvic mesh — reveals that judges often act like ringmasters: they delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some see this as a plus. In 2019, the American Bar Association joined a chorus of proponents urging courts to outsource even more or risk undermining Rule 1’s goal of achieving a “just, speedy, and inexpensive determination.” Critics, however, contend that delegating judicial power, especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs.

We wade into the controversy to offer both quantitative and qualitative evidence. By constructing an original dataset of 92 multidistrict products-liability proceedings centralized over 14 years, we introduce the first taxonomy of the diverse array of adjuncts working within them. Testing their effects with a multivariate analysis, we found that proceedings with special masters lasted 66% longer than those without, and appointing any kind of adjunct meant that the proceeding was 47% less likely to end. Not only did justice take longer, it cost more: 74% of the adjuncts were not magistrate judges, meaning that the parties paid them. And plaintiffs alone bore all costs in 54% of those appointments.

Digging deeper, we then interviewed some of the lawyers, judges, and adjuncts who participated in these proceedings. Attorneys’ experiences moved scholars’ longstanding concerns from law-review pages to real life: rather than improving justice, some adjuncts cajole parties through off-the-record discussions; repeat players on all sides thrive through symbiotic sponsorship; and plaintiffs are left playing the lawyer lottery, for their outcomes may depend more on whether they picked an attorney with the inside track than their suit’s merits. Collectively, our findings support existing reservations about allocating judicial power to those in the private sector.

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