Academic journal article Notre Dame Law Review

Opening the Door for Bias: The Problem of Applying Transferee Forum Law in Multidistrict Litigation

Academic journal article Notre Dame Law Review

Opening the Door for Bias: The Problem of Applying Transferee Forum Law in Multidistrict Litigation

Article excerpt


Quick, what part of the federal court system is appointed exclusively by the Chief Justice of the United States Supreme Court, (1) allows parties as little as one minute to make their case, (2) and acts upon approximately 36,000 civil actions a year (3) from every corner of the country? If you answered the Judicial Panel on Multidistrict Litigation (JPML) then you probably either work in complex litigation or were tipped off by the Note's title. In truth multidistrict litigation (MDL), over which the Panel presides, is one of the legal world's best kept secrets. (4)

MDL sidesteps traditional rules of procedure to efficiently consolidate large numbers of similar cases for pretrial proceedings. In order to achieve these massive efficiency gains, the JPML is vested with rather extraordinary power to consolidate and transfer litigation. The potential for abuse of this power justifies close scrutiny of the Panel's decisions, especially when the location of consolidation could have an adverse effect on a group of litigants. Exactly one such case arises out of a simple choice of law rule, which mandates that a court receiving an MDL docket should apply its own circuit's law to decide federal questions. When there is a circuit split on a dispositive pretrial issue, this rather innocuous-sounding rule effectively allows the Panel to decide MDL cases based solely on the location of consolidation. While there is no evidence that the Panel has been abusing its power, this choice of law rule opens the door for bias to enter into an increasingly important part of the federal judicial system, and it thus deserves attention.

Part I of this Note provides an overview of the MDL process, while Part II details how federal choice of law issues provide an opening for bias. Finally, Part III reviews various prophylactic measures and concludes that mandating the use of transferor court law in the MDL context is the easiest and most effective means to prevent JPML bias.


A. The Genesis and Purpose of Modern Multidistrict Litigation

Over the latter sixty years of the twentieth century, a variety of factors contributed to a vast expansion of federal litigation. (5) As courts' dockets began to fill, some judges noted the growing issue of dispersed and duplicative litigation. In 1941, within the context of a district court's refusal to enjoin a patent infringement action already decided by another district court, Judge Maris of the Third Circuit noted:

   The economic waste involved in duplicating litigation is obvious.
   Equally important is its adverse effect upon the prompt and
   efficient administration of justice. In view of the constant
   increase in judicial business in the federal courts ... public
   policy requires us to seek actively to avoid the waste of judicial
   time and energy. Courts ... should therefore not be called upon to
   duplicate each other's work in cases involving the same issues and
   the same parties. (6)

Judge Marls understood that the federal court system was beginning to face a crisis of resources, and his concern foreshadowed the creation of a procedural solution to growing dockets and duplicative actions: multidistrict litigation. The roots of modern MDL stem from the early 1960s, when Chief Justice Warren--responding to over 1800 civil actions related to conspiracy allegations spread across thirty-three districts--created the Coordinating Committee for Multiple Litigation of the United States District Courts. (7) Through voluntary agreement, the committee coordinated and consolidated discovery, established a casewide document clearinghouse, and utilized national depositions. (8) Due in large part to these measures, the cases were "disposed of by 1968, far earlier than had been anticipated." (9) Following this success, the Committee drafted and recommended to Congress the passage of a formal mechanism for case consolidation, centered upon a standing judicial panel. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.