Unorthodox Civil Procedure: Modern Multidistrict Litigation's Place in the Textbook Understandings of Procedure
42 Pages Posted: 2 Aug 2017 Last revised: 13 Apr 2018
Date Written: July 31, 2017
Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old-but-new procedural tool that significantly disrupts decades of worked-out doctrinal equilibria — and, now comprising a shocking 40% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism over federalism, consent over adversity, procedural exceptionalism over transsubstantivity, and common law over the Federal Rules. In other words, the MDL takes what has generally been the losing side of procedure’s big theoretical and doctrinal debates; it is a symptom of deeper pressures on the system to recalibrate procedure’s traditional baselines.
MDLs are modern because they see the need for a national, not state-centered, approach to questions of procedure. They disrupt traditional legal relationships, turning judges and lawyers into collaborative partners in practical problem solving and creating a new judicial elite among the federal judges chosen to lead them. MDLs exemplify procedural exceptionalism — a type of litigation that judges insist is too different from case to case to be managed by the transsubstantive values that form the very soul of the Federal Rules. Instead, judges develop their own special MDL procedures — yet this new kind of procedural law is rarely treated as precedential or even subject to customary appellate review.
These deviations from the “textbook” have caused academic anxiety. Scholars worry about lack of transparency, loss of the individual claim, and the dearth of uniform procedural law. Many judges who try MDLs, on the other hand, view them favorably — often as the only way to ensure access to court for massive claims on a national scale — and also as highly enjoyable judicial work. This Article relies on interviews with MDL judges to offer a new set of counterpoints to the academic criticism.
The Article also sets MDLs in the broader context of “unorthodox lawmaking” — a phenomenon documented in the legislative context but not yet in procedure. MDLs, like omnibus legislation and other forms of nontraditional lawmaking, are responses to pressure on the system, some way in which legal rules have not kept up with the obstacles of modern times when the consensus is that Congress and the courts must nevertheless take action. All of these unorthodox vehicles thus tend to operate outside the relevant rules, raising questions about the value of the rules themselves. They raise the question: What do we care about most? Is it access to court (or, analogously, the production of legislation)? Or is procedure for procedure’s own sake the more important value — even if upholding that value means fewer cases get resolved? MDLs highlight this tension. They are likely more symptom than cause of procedure’s modern challenges.
Keywords: civil procedure, litigation, judges, class actions, multidistrict litigation, MDL, mass torts, lawmaking, decisionmaking, complex litigation
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