Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation

55 Pages Posted: 11 Jan 2015

See all articles by Jaime Dodge

Jaime Dodge

Emory University School of Law

Date Written: January 9, 2015

Abstract

Faced with the emerging phenomenon of complex litigation — from school desegregation to mass torts — the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand for trial. But as transferee judges increasingly focus upon efficiently directing and sequencing litigation, their procedural and structural decisions can often have unanticipated consequences for the parties’ strategic aims. This Article therefore focuses not only upon identifying the emerging best practices for what I term “facilitative judges” in the first days of multidistrict litigation but upon the strategic consequences these practices have for the litigation.

Keywords: mass torts, complex litigation, multidistrict litigation, class action, civil procedure, Wal-Mart Stores, Inc. v. Dukes, AT&T Mobility LLC v. Concepcion, transferee judges

JEL Classification: K13, K41

Suggested Citation

Dodge, Jaime, Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation (January 9, 2015). 64 Emory L.J. 329 (2014)., UGA Legal Studies Research Paper No. 2015-1, Available at SSRN: https://ssrn.com/abstract=2547569

Jaime Dodge (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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