Bradt on a "Radical" Judicial Power Grab

Andrew Bradt, University of California, Berkeley School of Law, has posted “A Radical Proposal”: The Multidistrict Litigation Act of 1968, University of Pennsylvania Law Review 165 (2017): 831-916

One of the central stories in current procedural law is the recent and rapid ascendance of federal multidistrict litigation, or, as it is commonly known, MDL. As the class action has declined in prominence, MDL has surged: to wit, currently more than a third of the cases on the federal civil docket are part of an MDL. With MDL’s growth has come attention from scholars, much of it critical. One recurring aspect of this criticism is that MDL judges have expanded the MDL statute beyond its modest ambitions. But what were the original purposes of MDL, and where did the statute come from? This Article unearths the origins of MDL by examining the papers of its principal drafters. Those papers reveal that the aims of the small group—a handful of federal judges and one scholar—who developed and lobbied for the statute’s passage were anything but modest. Rather, the group believed that a mass-tort “litigation explosion” was coming and that a mechanism was needed to centralize power over nationwide litigation in the hands of individual judges committed to the principles of active case management. Moreover, the papers show that the judges were relentless in their pursuit of the statute’s passage and engaged in sharp-elbowed tactics and horse-trading to succeed. In short, MDL was a power grab—a well-intentioned and brilliant one, but a power grab all the same. Understanding the roots of the judges’ accomplishment clarifies current debates about MDL and should shift those debates away from fights over the scope of the statute to more normative assessments of the concentration of power the drafters sought and successfully achieved. In short, MDL currently does what its creators intended; critiques of the statute should proceed on those terms, not from the position that MDL has somehow grown beyond its modest ambitions.

H/t: Legal Theory Blog