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MDL Revolution

Gluck, Abbe R.
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Law
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Faculty Scholarship Series
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Gluck, MDL Revolution.pdf
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Abstract
Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges-who formally have only pretrial jurisdiction over individual cases-have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal. Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis-and unprecedented opposition to it-MDL is finally in public view. State attorneys general have resisted the opioid MDL's intense nationalism, its relentless drive to global settlement, its wild procedural innovation, its blurring of differences across state law, and its dramatic assertions of jurisdictional authority. Opiates is the most extraordinary MDL yet, but most big MDLs share many of its features, and Opiates is already the roadmap for the next mega-cases. Moreover, even as resistance to Opiates has dispersed some of the MDL's early power, that resistance itself has come in the form of unusual procedural mechanisms. MDL is designed for individual cases-giving similar suits filed in different districts an efficient pretrial process before sending them home for trial. In reality, that is pure fiction. Few cases ever return. And the MDL's mode of coordination-from its antit federalism stance to its insistence that each proceeding is too unique to be confined by the Federal Rules-chafes at almost every aspect of procedure's traditional rules and values. MDL is not-so-secretly changing the face of civil procedure. This Article weaves together for the first time these exceptional features of MDL and their disruption of procedure's core assumptions. Is MDL a revolution? Or simply a symptom of a larger set of modem procedural tensions manifesting in many forms? Either way, it begs the question: What do we expect of litigation on this scale?
URI
http://hdl.handle.net/20.500.13051/17997