Academic journal article Northwestern University Law Review

Mdl V. Trump: The Puzzle of Public Law in Multidistrict Litigation †

Academic journal article Northwestern University Law Review

Mdl V. Trump: The Puzzle of Public Law in Multidistrict Litigation †

Article excerpt

INTRODUCTION

While running for the presidency, Donald Trump campaigned on a platform promising jobs to the American people.1 So far, however, perhaps his biggest success on that score has been creating work for lawyers suing him and his Administration.2 Lawsuits challenging the new President's actions have proliferated throughout the federal courts, including the highprofile suits contesting the "travel ban" Executive Order,3 contending that the President's business entanglements violate the Emoluments Clauses of the Constitution,4 and asserting that his plan to punish so-called "sanctuary cities" is unconstitutional.5

The travel ban litigation, in particular, has been notable for its speed and multiplicity. Almost immediately after the ban was announced, lawyers fanned out across the country both to aid affected individuals and to challenge the order in multiple federal courts.6 What resulted was a panoply of rulings and overlapping injunctions, followed by several appellate decisions and, inevitably, cert. petitions and Supreme Court review.7 As these cases wended their way through various federal courts around the country, a question occurred to us, as procedure scholars-Why haven't these cases-and the other sets of cases challenging the Administration- been made the subject of multidistrict litigation (MDL)? And, if they were, would that be preferable to the free-for-all of the status quo?

The MDL statute, 28 U.S.C. 1407, allows for consolidation of pretrial proceedings in a single federal district of all cases sharing a common question of fact. Any party to any of the allegedly related cases may make a motion for consolidation.8 This motion triggers consideration by the Judicial Panel on Multidistrict Litigation (JPML, or the Panel), the panel of seven federal judges that decides whether cases should be consolidated into MDL and where the MDL should be assigned.9 The MDL statute's goal is to prevent duplication of similar litigation in multiple federal courts across the country. The basic idea is that it is more efficient to conduct pretrial proceedings in cases involving the same questions only one time and before only one judge, rather than over and over again before many.

For many years, the 1968 MDL statute was relatively little noticed, even by most procedure scholars,10 but that is emphatically no longer the case. Quite the opposite is true: MDL is now in the spotlight, if for no other reason than the surprising statistic that MDL cases currently make up more than one-third of the pending federal civil docket, an astonishing increase over the last two decades.11 Over the last few years, it has become accepted wisdom that virtually any tort controversy of national import will inevitably become an MDL proceeding consolidated before a single judge. Examples include the BP oil spill, the Volkswagen "clean diesel" fraud, and the NFL concussion litigation, all of which were "MDL-ed" and assigned by the JPML to handpicked judges in New Orleans, San Francisco, and Philadelphia, respectively.12 And all have been resolved relatively successfully through massive settlements, though not without hiccups. In short, MDL is now a central and mostly well-regarded aspect of the federal legal system when it comes to litigation of national scope, largely because it facilitates a unitary, nationwide proceeding and, potentially, a global settlement.

While it is true that MDL is best known for consolidating mass torts, it is not confined to those cases. The small group of judges who developed the MDL statute wanted it to be as open-ended as possible, so that its application would not be limited to particular subject matters.13 As a result, there is no language in the statute preventing the MDL device from being deployed in what we might think of as "public law" cases,14 such as those pending against the Trump Administration. There also are some good reasons why participants in these cases-and the judges hearing them- might find MDL attractive. …

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