Judicial Adjuncts in Multidistrict Litigation

77 Pages Posted: 8 Jun 2020

See all articles by Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

University of Georgia Law School

Margaret S. Williams

Federal Judicial Center; Visiting Scholar

Date Written: May 25, 2020

Abstract

Peeking under the tent of our nation’s largest and often most impactful cases — like opioids and pelvic mesh — reveals that judges often act like ringmasters: they delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some see this as a plus. In 2019, the American Bar Association joined a chorus of proponents urging courts to outsource even more or risk undermining Rule 1’s goal of achieving a “just, speedy, and inexpensive determination.” Critics, however, contend that delegating judicial power, especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs.

We wade into the controversy to offer both quantitative and qualitative evidence. By constructing an original dataset of 92 multidistrict products-liability proceedings centralized over 14 years, we introduce the first taxonomy of the diverse array of adjuncts working within them. Testing their effects with a multivariate analysis, we found that proceedings with special masters lasted 66% longer than those without, and appointing any kind of adjunct meant that the proceeding was 47% less likely to end. Not only did justice take longer, it cost more: 74% of the adjuncts were not magistrate judges, meaning that the parties paid them. And plaintiffs alone bore all costs in 54% of those appointments.

Digging deeper, we then interviewed some of the lawyers, judges, and adjuncts who participated in these proceedings. Attorneys’ experiences moved scholars’ longstanding concerns from law-review pages to real life: rather than improving justice, some adjuncts cajole parties through off-the-record discussions; repeat players on all sides thrive through symbiotic sponsorship; and plaintiffs are left playing the lawyer lottery, for their outcomes may depend more on whether they picked an attorney with the inside track than their suit’s merits. Collectively, our findings support existing reservations about allocating judicial power to those in the private sector.

Keywords: MDL, Class Action, Special Masters, Claims Administrators, Magistrate Judges, Complex Litigation, Products Liability, Torts

JEL Classification: K41, K13

Suggested Citation

Burch, Elizabeth Chamblee and Williams, Margaret S., Judicial Adjuncts in Multidistrict Litigation (May 25, 2020). Columbia Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3610197

Elizabeth Chamblee Burch (Contact Author)

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

HOME PAGE: http://https://www.law.uga.edu/profile/elizabeth-chamblee-burch

Margaret S. Williams

Federal Judicial Center ( email )

Washington, DC 20002
United States
202-502-4080 (Phone)

Visiting Scholar ( email )

131 21st Avenue South
Nashville, TN 37203
United States

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