Multidistrict Litigation and Common Law Procedure

On the 50th anniversary of the Multidistrict Litigation Act, the Act has gotten more attention than ever. One area that has led to significant controversy is the use of judicial discretion to craft procedures to manage MDLs. It is generally agreed that judges exercise discretion to create innovative procedures to resolve large-scale aggregate litigation transferred to their courts and that judges learn from approaches in previous MDLs that they think were successful in crafting these procedures. The controversy is that some think that this procedural approach is both exceptional and lawless.

This Essay argues against this view, showing how the judicial approach to MDL procedure is the same as the judicial approach across procedural areas, which is to say that procedures develop in a common-law-like fashion with extensive reliance on judicial discretion. The argument about rulemaking processes in MDL is a distraction from what should really matter, which is the normative underpinnings of the procedural regime, what it is trying to achieve, and whether the procedures currently in use adequately meet these normative goals.