One Size Doesn't Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism

60 Pages Posted: 23 Sep 2014

Date Written: September 22, 2014

Abstract

Multidistrict litigation (“MDL”) has, in recent years, become so central a device in complex litigation as to be almost routine. As authorized by federal statute, the Multidistrict Litigation Panel of federal judges regularly transfers cases which may share no more than one common issue from federal districts all over the nation into a single transferee district. The transferee court is then in charge of all pre-trial procedure for all of the cases on a collective basis. This includes conduct of discovery as well as pre-trial motions, including summary judgment. While the transferee district is not permitted to adjudicate the merits of the individual suits at trial (other than in the form of several test cases, binding only on the specific litigants involved), as a practical matter cases return to their transferor districts very rarely. Instead, there is constant pressure to form a global settlement. While individual claimants may opt out of that settlement, the settlement usually effectively ends the process. The claimants’ pre-trial cases are controlled by an appointed steering committee of selected attorneys.

Although much has been written on the subject of multidistrict litigation, none of that scholarship to this point has directly challenged the constitutionality of the process. This Article, in contrast to all prior scholarship, conducts a frontal assault on the constitutionality of MDL as a stark violation of the individual claimant’s due process right to her day in court. In so doing, the Article explores the underlying political and constitutional theory of a litigant’s right to her day in court, and explains how current MDL practice unambiguously undermines that right. MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law. The Article considers and rejects the supposed utilitarian values of efficiency attained by use of MDL as an asserted justification for the serious interference with the individual’s control of her own case. In making its case against the constitutionality of MDL, the Article contrasts the methods by which class action procedure — itself subject to several challenges over the years on due process grounds — seeks to protect the due process rights of absent class members. The Article concludes that whatever due process problems impact class actions pale in comparison to the dangers deriving from the crude form of procedural collectivization imposed by MDL. The Article ends with an exploration of ways in which MDL’s constitutionality might be salvaged through important modifications in its processes.

Keywords: multidistrict litigation, due process, civil procedure, constitutional law, complex litigation, class actions

JEL Classification: K10, K19, K40, K49

Suggested Citation

Redish, Martin H. and Karaba, Julie, One Size Doesn't Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism (September 22, 2014). Boston University Law Review, Forthcoming; Northwestern Law & Econ Research Paper No. 14-17; Northwestern Public Law Research Paper No. 14-48. Available at SSRN: https://ssrn.com/abstract=2499623

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Julie Karaba

Northwestern University

2001 Sheridan Road
Evanston, IL 60208
United States

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