Law of the Case: A Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation

Abstract

The Judicial Panel on Multidistrict Litigation (“JPML” or “Panel”) has been functioning effectively for almost 20 years. Indeed, multidistrict consolidation for pretrial proceedings has become essential to the federal courts’ handling of the burden of complex litigation. Yet such consolidation sometimes creates procedural dilemmas of its own. In the last few years, two areas of uncertainty have emerged that interfere with the optimal operation of the multidistrict litigation system. First, courts are perplexed as to the application of ‘law of the case’ doctrine in multidistrict litigation, where cases may fall within the jurisdiction of two or three federal district courts consecutively, having landed briefly in the hands of the JPML, while still other courts may handle certain discovery issues. Second, the cases reflect some confusion concerning which federal courts have appellate jurisdiction over the cases that move among district courts of different circuits. In light of the substantial and growing number of cases drawn into the multidistrict net, these unresolved issues will obstruct and delay the administration of justice.

It is the goal of this Article to examine particularly the first of these muddled areas and to suggest how law of the case doctrine should be tailored to fit multidistrict litigation. The necessary starting point is the basic doctrine of law of the case. Part I outlines the contours of the doctrine and details the split among the federal circuits as to how it should be defined and applied. Part II then explains how the content of the doctrine must be adjusted to reflect administrative changes in the handling of cases such as changes of judge, transfer, consolidation, and possible combinations of these three mechanisms. Part II explores, in addition, the threshold question of choice of law that is raised when such administrative changes entail a change of court and the courts involved define the content of the doctrine differently. All of these factors complicate the use of law of the case doctrine in multidistrict litigation. Part III discusses the doctrine in the context of section 1407 litigation, presenting a new synthesis of law of the case to accommodate the peculiarities and fit the needs of multidistrict litigation.

Keywords: law of the case, multidistrict litigation, transfer, consolidated cases

JEL Classification: K40, K41