MDL Nationalism, Federalism, and the Opiod Epidemic

Abstract

Multidistrict litigation (MDL) is a nationalist animal in a federalist system. It is a pragmatic, creative and modern response to the needs of litigation in today's national economy. As such, MDL has become something of a force against the litigation federalism that is at the core of traditional civil procedure. This should come as no surprise. In many ways, that's the point.

Although not the intent of the original drafters of the MDL statute, 28 U.S.C. 1407,2 today, MDLs are formed to centralize into a single federal court for resolution nationwide suits that often are not amenable to class action. Of course, class actions are often not possible due to a key feature of federalism itself: differences across state law. And almost all "mega" MDLs3 of this nature hold out as their goal "global peace"-a settlement of all pending suits, including suits filed in state courts and so outside of the MDL. In this push for settlement, the gravitational force of large MDLs often pulls state actors and state cases into the federal courts' domain regardless of the formalities of state-by-state jurisdiction and with little attention to state-law variations.

This essay aims to focus new attention on MDL nationalism and federalism. Is MDL's emergence as a nationalist workaround to a fed-eralist litigation system a symptom of broader cracks in the way traditional procedure applies (or fails to adequately apply) to modern problems? And is this particular type of workaround-which has developed organically through generous judicial bending of the MDL statute and the Federal Rules-the way we want the system to evolve? Would a more formal change-such as a new statute, perhaps one that thinks about aspects of federalism we might wish to preserve-be preferable?