The Future of Multidistrict Litigation

Abstract

The occasion for this Essay is the fiftieth anniversary of the enactment of the multidistrict-litigation statute, 28 U.S.C. § 1407. Multidistrict litigation has quietly become a central feature of federal litigation, sweeping into massive aggregate proceedings one-third or more of all federal civil cases each year. Recent commentary on multidistrict litigation has been highly critical of the “Wild West” quality of the proceedings, which arguably benefit repeat-player lawyers at the expense of their clients’ interests and autonomy. Reform of the process now seems likely. This Essay begins by describing the features, most historically contingent, that have brought multidistrict litigation to this crossroads. Using these features as its foundation, the Essay demonstrates that they have combined to create a form of action not unlike an opt-in class action, but without the formal procedural protections that class actions contain. Turning to the future, the Essay suggests alternate paths for reform: one that brings multidistrict litigation into closer alignment with Rule 23 and one that pulls multidistrict litigation back to a more modest discovery-coordinating process that mirrors Congress’s original design for § 1407. Both paths leave large (albeit different) gaps in the handling of aggregate litigation. The Essay closes by arguing that the two paths can be blended into a better multidistrict process.

Keywords: civil procedure, complex litigation, multidistrict litigation class actions

JEL Classification: K40, K41