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The Information-Forcing Role of the Judge in Multidistrict Litigation

50 Pages Posted: 28 Aug 2016 Last revised: 29 Oct 2017

Andrew Bradt

University of California, Berkeley - School of Law

D. Theodore Rave

University of Houston Law Center

Date Written: August 23, 2016

Abstract

In this Article, we address one of the most controversial and current questions in federal civil procedure: What is the proper role of the judge in the settlement of mass-tort multidistrict litigation, or MDL? Due to the Supreme Court’s hostility to class actions, MDL proceedings have begun to dominate the federal civil docket. To wit, more than one third of the federal civil caseload is MDL. Although MDL is structurally different from a class action, the procedure replicates—and in many ways complicates—the principal-agent problems that have plagued the class action. Like class actions, nearly all MDL cases are resolved by a comprehensive global settlement agreement. But, unlike class actions, in MDL cases the judge has no authority to reject a settlement agreement as unfair to the potentially thousands of parties ensnared in the litigation. Here, we argue that, given this limitation, the judge should act as an “information-forcing intermediary.” The judge should reserve the right to offer a nonbinding opinion about the fairness of the settlement to send an easy-to-understand signal directly to the parties about their lawyers’ performance. Such a signal will mitigate many of the agency problems inherent to MDL and allow parties to exercise informed consent when choosing whether to accept a settlement. More generally, this Article is a call for judges to embrace an information-forcing role at the head of consolidated MDL proceedings.

Keywords: multidistrict litigation, MDL, aggregate settlement, class action, mass torts, information forcing, intermediary, aggregate litigation, quasi class action

JEL Classification: K13, K40, K41

Suggested Citation

Bradt, Andrew and Rave, D. Theodore, The Information-Forcing Role of the Judge in Multidistrict Litigation (August 23, 2016). California Law Review, Forthcoming; UC Berkeley Public Law Research Paper No. 2828461; U of Houston Law Center No. 2016-A-15. Available at SSRN: https://ssrn.com/abstract=2828461

Andrew Bradt

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

D. Rave (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-743-2499 (Phone)

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