AbstractFrom the Deepwater Horizon disaster to the opioid crisis, multidistrict litigation—or simply MDL—has become the preeminent forum for devising solutions to the most difficult problems in the federal courts. MDL works by refusing to follow a regular procedural playbook. Its solutions are case-specific, evolving, and ad hoc. This very flexibility, however, provokes charges that MDL violates basic requirements of the rule of law.
At the heart of these charges is the assumption that MDL is simply a larger version of the litigation that takes place every day in federal district courts. But MDL is not just different in scale than ordinary litigation; it is different in kind. In structure and operation, MDL parallels programs like Social Security where an administrative agency continuously develops new procedures to handle a high volume of changing claims. Accordingly, MDL is appropriately judged against the “administrative” rule of law that emerged in the decades after World War II, and which underpins the legitimacy of the modern administrative state.
When one views MDL as an administrative program instead of a larger version of ordinary civil litigation, the real threats to the legitimacy of its model of aggregate litigation come into focus. The problem is not that MDL is ad hoc. Rather, it is that MDL lacks guarantees of transparency, public participation, and judicial review that administrative agencies have operated under since the middle of the twentieth century. The history of the administrative state suggests that MDL’s continued success as a forum for resolving staggeringly complex problems depends on how it addresses these governance deficits.
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