The Looming Battle for Control of Multidistrict Litigation in Historical Perspective

2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in this Article is to shed light on the reasons the Multidistrict Litigation Act was constructed as it was and suggest that those engaged in the current debate ask, after becoming informed by available data, whether those reasons have lost any of their currency.

I also offer some tenuous predictions about the path forward, recognizing that the prediction business is a dangerous one in the current political climate. First, I review the history to explain why the MDL framework was built without Rules Committee involvement. Then, I fast-forward to the present day and discuss briefly the nascent proposals to either amend the MDL statute or provide for Federal Rules of Civil Procedure for MDL. Finally, I conclude by assessing the current debate and make some suggestions as this debate winds its way forward.

In 1968, the small cadre of judges who developed and fought for the MDL statute won the battle for procedural power. Today, fifty years later, the MDL statute continues to operate as they imagined. However, with success comes scrutiny, and what had been settled is now once again up for debate.