28 U.S.C. § 1407 allows for the centralization of unique cases into a single forum for pretrial purposes. The product is multidistrict litigation, known colloquially as the “MDL.” While initially conceived as a means of increasing efficiency for only particularly massive, complex litigation, MDLs have become pervasive. Today, over fifteen percent of all civil litigation—and fifty percent of all federal civil litigation—is consolidated into MDLs. Yet, MDLs are commonly overconsolidated, such that only one judge presides over hundreds, thousands, or even hundreds of thousands of individual cases at a time. Fewer than three percent of such cases return to their original forum for trial, meaning that a handful of judges wield considerable influence over a vast portion of this nation’s civil litigation.
This Note illustrates how the current MDL scheme suffers from two accuracy problems due to concentrated decisionmaking. First, overburdened MDL judges are regularly tasked with making legally dubious decisions, often lacking concrete authority or procedural guidance. This is especially apparent with regard to choice of law: MDL judges, tasked with applying conflicting state and federal law, face an enormous interpretive burden. Such a burden drains the limited judicial resources of an MDL court and often results in judges neglecting to address nuances in conflicting law. Second, there is the problem of inaccurate outcomes, caused by subjecting hundreds or thousands of unique cases to a single, uniform decision. Statistically, the risk of an extreme decisional distribution is so high that risk-averse parties are induced to settle where they otherwise would not.
Author: Isaak Elkind
