Andrew Bradt (University of California, Berkeley - School of Law) has posted The Long Arm of Multidistrict Litigation (William & Mary Law Review, Vol. 59, No. 4, 2018) on SSRN. Here is the abstract:
Nearly 40 percent of the civil cases currently pending in federal court—now over 130,000—are part of a multidistrict litigation, or MDL. In MDL, all cases pending in federal district courts around the country sharing a common question of fact, such as the defectiveness of a product or drug, are transferred to a single district judge for consolidated pretrial proceedings, after which they are supposed to be remanded for trial. But the reality is that less than 3 percent are ever sent back because the cases are resolved in the MDL court, either through dispositive motion or mass settlement. Surprisingly, despite the fact that the MDL court is where all of the action in these cases typically happens, that court need not have personal jurisdiction over the plaintiffs or the defendants under the rules that would apply were the cases being litigated one-by-one. Indeed, even as the Supreme Court has clamped down on personal jurisdiction in recent years, the personal jurisdiction exercised in MDL has avoided rigorous analysis for reasons that do not survive scrutiny. In this Article, I examine how and why MDL has avoided these fundamental questions and suggest a new way of analyzing MDL jurisdiction under the Fifth Amendment’s Due Process Clause, focusing on the interests that the doctrine of personal jurisdiction attempts to serve, especially the assurance of a forum that provides a fair opportunity to participate. In particular, I explore the possibility of justifying MDL on the basis of a national shared interest in efficient dispute resolution, so long as such analysis adequately takes into account the interests of the parties in a convenient forum. In so doing, I hope to focus the discussion of jurisdiction in MDL—and of MDL generally—away from the fiction of “limited transfer” and to the reality of aggregated, unitary litigation.
Very interesting and recommended.