Multi-district litigation: time for real rules

A milestone was reached in March: over half of all cases “currently open in the federal judicial system now are contained in multi-district litigation.” [James Beck, Lexology] And that poses a problem if you believe in uniform, stable, and knowable procedures for handling cases:

As we’ve discussed many times before, the ordinary Federal Rules of Civil Procedure apply sporadically, if at all in MDLs. Likewise, some MDL judges apply Daubert rigorously, and others do not. Some MDLs are disposed of on the basis of federal preemption, while other MDL judges seem never to have granted a preemption motion in their careers. Appellate opportunities are few and far between, and almost always arise when plaintiffs lose, since defense losses don’t generate immediately appealable orders. The current MDL system makes the federal judicial system resemble the baroque Holy Roman Empire – an agglomeration of hundreds of feudal principalities, feigning allegiance to one set of laws, but in reality operating more or less independently – with some of those margraves and palatine counts wielding rather despotic power.

Like some wasps do to caterpillars, agglomerations of “plaintiff steering committees,” assisted by shadowy funded media solicitors, have parasitized the federal judicial system, converting it into a system not for justice, but for converting mass solicitations into mass settlements without the merits of 99+% of the filed “inventory” ever being examined.

And because of the rise of the defendant technique known as “pre-service removal,” Beck says, the share of cases in MDLs is likely to rise further.

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