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Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. __ (forthcoming, 2021), available at SSRN.

Modern litigation often operates at a larger scale than rulemakers envisioned when the Federal Rules of Civil Procedure (FRCP) debuted in 1938. The FRCP’s architects recognized that aggregation would pose challenges. But they could not foresee the specific adjustments that would be necessary to process novel claim clusters catalyzed by advances in technology, market organization, and substantive law. Amendments to the FRCP and the promulgation of nonbinding guidelines—including by the Federal Judicial Center, American Law Institute, and Bolch Judicial Institute—have addressed the expanding scale of litigation. But aggregate litigation evolves faster than rules and best practices manuals can adapt. When the litigation frontier moves beyond the shadow of existing guidance, emergent procedures can seem unsettling and unjustified. Yet these procedures shape outcomes in cases implicating significant public policy interests.

This high-stakes gap between procedural design and procedural reality is the focus of Abbe Gluck and Elizabeth Chamblee Burch’s forthcoming article on multidistrict litigation (MDL). Their key insight is that a body of “MDL common law” has developed from the accretion of procedural innovations in large-scale cases. Each new MDL shares features with prior MDLs while adding novel quirks. The shared features enable judges to borrow procedures from prior MDLs, while the quirks generate new procedures that become precedent for future MDLs. Over time, judicial responses to quirks replicate and ossify into common law, such that “the exception becomes the norm.”

Many ordinary MDL procedures are unusual in traditional litigation. Gluck and Burch cite numerous examples of how MDL exceptionalism circumvents traditional constraints on judicial discretion, including transsubstantivity, litigant consent, choice of law rules, and respect for parallel state litigation. Collectively, these exceptions foster what the authors call “the MDL Paradox.” The paradox arises because the statutory framework detailing how MDLs should operate is inconsistent with the common law framework governing how they actually operate. In theory, MDLs provide an alternative to class actions that preserves the “individual” character of each constituent case. But in practice, MDLs replicate the “centralized” approach of class litigation without the attendant safeguards.

Gluck and Burch explore the MDL paradox by analyzing the ongoing Opiates proceeding before Judge Dan Polster in the Northern District of Ohio. This sprawling MDL is attempting to resolve approximately 2,900 suits addressing virtually every facet of the national opioid crisis. A diverse array of plaintiffs seeks distinct remedies from a heterogenous group of defendants under varying theories. The full case caption alone foreshadows a complex story, featuring states, counties, cities, hospitals, doctors, pharmacies, insurers, manufacturers, distributors, and various other parties. Moreover, related claims are pending in state court and thus nominally are beyond Judge Polster’s control. Yet he hopes to arrange a nationwide settlement of federal and state claims. Depending on one’s perspective, Judge Polster’s procedural rulings either creatively avoid obstacles to settlement or imprudently plow through them.

The article spotlights the role of State Attorneys General, who have coalesced to oppose federal centralization in the Opiates MDL. Many MDLs conflict with parallel state proceedings. But this conflict is unusually stark in the Opiates MDL because State AGs are plaintiffs in state court while many local governments are plaintiffs in the MDL. State AGs want to litigate their state court claims without federal interference and without unnecessary friction between state and local governments. These state interests have highlighted federalism issues regarding the federal court’s embrace of interjurisdictional preclusion and lack of deference to state actors. Similar issues lurk in other MDLs, but they have received more scrutiny in the Opiates case due to its political salience and the state AGs’ coordinated advocacy. Judge Polster has not been as receptive to federalism concerns as the AGs would prefer, telling the Massachusetts AG: “I can order you to do anything I want. I can order a State Court Judge to do anything. Whether it will be upheld or not, I don’t know.”

Burch and Gluck conclude their analysis of MDL exceptionalism with innovative and pragmatic suggestions for reform. They recognize that the quirks, scale, and stakes of novel MDLs make procedural innovation inevitable. But they contend that a common law approach to procedure in MDLs should not morph into unfettered judicial discretion. Rather than suggesting specific constraints that might quickly become outdated, they propose “guardrail[s]” that would improve MDL common law by altering how judges craft procedures. Their premise is that sound procedures are more likely to emerge when judges consider competing options and review critical information that refines their understanding of the issues. To nudge judges in this direction, Burch and Gluck suggest expanding appellate review, supplementing centralization with pluralism by remanding some individual cases to the districts in which they were initially filed, and creating opportunities for information-forcing motion practice.

More generally, Gluck and Burch frame their proposals as part of a broader inquiry into setting realistic expectations for what procedure can accomplish “in mega-cases that are dumped into the laps of courts.” In that respect their article is reminiscent of scholarship from past decades analyzing procedural innovations in class actions. Then as now, scholars considered whether the regulatory aspirations of large-scale litigation warranted departing from procedural values animating small-scale litigation. Dueling conceptions of “justice” pitted an emphasis on outcomes against an emphasis on the manner in which those outcomes were achieved.  A similar dynamic is shaping MDLs. Gluck and Burch advance the literature by constructing an insightful account of how MDL common law evolves and a thoughtful assessment of the norms that should shape this evolution.

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Cite as: Allan Erbsen, Procedural Evolution in Multidistrict Litigation, JOTWELL (May 20, 2021) (reviewing Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. __ (forthcoming, 2021), available at SSRN),