Academic journal article Michigan Law Review

Mdl as Public Administration

Academic journal article Michigan Law Review

Mdl as Public Administration

Article excerpt


In a widely publicized December 2017 order, the Judicial Panel on Multidistrict Litigation (JPML) transferred all litigation involving the sale and distribution of opioids that was pending in federal court to the Northern District of Ohio for coordinated pretrial proceedings.1 No sooner had the cases been transferred to Ohio than the judge assigned to manage them, Dan Aaron Polster, announced he did not intend to follow the usual order of business under the Federal Rules of Civil Procedure (FRCP).2 "The federal court[s]," Polster said, "[are] probably the least likely branch of government to try and tackle" the opioid crisis. "[B]ut candidly, the other branches of government, federal and state, have punted."3 Noting that around 150 Americans were dying every day from opioid overdoses, Polster declared he wanted the parties to devise a settlement that would "do something meaningful to abate this crisis."4 And he wanted it within a year.5

Twenty months into the litigation, Judge Polster's attempts to forge a global opioid settlement had yet to bear fruit.6 His remarks, however, provide a revealing window into the world of modern multidistrict litigation, or simply "MDL." From the Deepwater Horizon disaster to the opioid crisis, MDL has become the preeminent forum for working out solutions to the most intractable problems in the federal courts.7 To do so, judges and lawyers devise ad hoc solutions to problems of organization, settlement, and management that arise in particular cases. As expressed by one judge: "I see ways to change course each time, new ways to tweak it.... Every case is different."8 As expressed by another, "Practices are always evolving."9

As MDL has grown in importance, critics have charged that its procedural flexibility violates the rule of law. The charges come from both sides of the "v." Focusing on MDL'd plaintiffs, legal scholars contend that MDL's lack of regular procedure allows the lawyers who control it to enrich themselves at the expense of plaintiffs for whom they perform "common benefit" work.10 At the same time, large corporate defendants have joined longstanding academic complaints about MDL's ad hockery.11 Citing statistics that purport to show that MDL'd cases make up more than 40 percent of the federal docket, defense groups argue that MDL's unstructured procedure encourages the filing of meritless claims and subjects them to unfair settlement pressure.12

The attack on MDL took on new urgency as the corporate defense bar mobilized behind reforms that would subject MDL to its own procedural rules.13 In late 2017, three interest groups persuaded the Advisory Committee on Civil Rules to form a subcommittee to study MDL-specific amendments to the FRCP.14 If those amendments are adopted, MDL would for the first time be subject to rules other than those in the ordinary Federal Rules.15 Also in 2017, the House of Representatives passed H.R. 985, the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act," which included several MDL-related provisions.16 Neither the new subcommittee nor H.R. 985 is likely to result in immediate changes to MDL procedure.17 But they reflect a well-organized, well-funded effort to reform MDL. That project is explicitly premised on the view that MDL as now practiced violates the rule of law.18

Does it? This Article argues that one cannot answer that question without a better understanding of what MDL is. As this Article shows, MDL is not simply a super-sized version of the litigation that takes place every day in federal court, but a form of public administration that blends tools of ordinary litigation with tools of institutional design more commonly found in programs such as Social Security. As such, MDL is properly judged against the "administrative" rule of law that emerged in the United States in the decades following World War II. From this perspective, MDL's ad hockery is less of a concern than the fact that it lacks structural features that underpin the legitimacy of the federal administrative state. …

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