Download this Paper Open PDF in Browser

MDL v. Trump

21 Pages Posted: 9 Aug 2017 Last revised: 20 Nov 2017

Andrew Bradt

University of California, Berkeley - School of Law

Zachary D. Clopton

Cornell Law School

Date Written: August 7, 2017

Abstract

Litigation against the Trump administration has proliferated rapidly since the inauguration. As cases challenging executive actions like the travel ban and allegedly unconstitutional receipt of emoluments multiply in federal courts around the country, an important procedural question has so far not been considered: should these similar cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases — and we suspect that, sooner rather than later, one of these parties might give MDL a try.

In this Essay, we argue that although the MDL statute would allow for consolidation of these public-law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases’ undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process, and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass-tort litigation — and, indeed, it risks harming the national tort system more generally.

Keywords: MDL, Multidistrict Litigation, Public Law, Impact Litigation, Trump, Travel Ban, Nationwide Injunction, Supreme Court

Suggested Citation

Bradt, Andrew and Clopton, Zachary D., MDL v. Trump (August 7, 2017). Northwestern University Law Review, Forthcoming; Cornell Legal Studies Research Paper No. 17-37; UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3014825

Andrew Bradt

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

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Zachary Clopton (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio_zachary_clopton.cfm

Paper statistics

Downloads
59
Rank
313,000
Abstract Views
277