MDL AS PUBLIC ADMINISTRATION.

• Author: Noll, David L.
• Position: Multidistrict litigation

From 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 in which 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 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 its legitimacy come into focus. The problem is not that MDL is ad hoc. Rather, it is that MDL lacks the guarantees of transparency, public participation, and ex post 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.

TABLE OF CONTENTS INTRODUCTION I. MDL'S "UNORTHODOX CIVIL PROCEDURE" A. Ad Hoc Procedure in MDL B. A Roadmap of MDL Procedure 1. The Statutory Framework 2. Organizing the Litigation 3. Managing the Litigation 4. Resolution C. The Structural Environment for MDL Procedure-Making II. MDL AND THE RULE OF LAW A. The Rule of Law as Regular Procedure B. The Attack on MDL C. MDL as Super-Sized Litigation III. MDL as Public Administration A. The Problem for Congress B. Statutory Design C. The Operation of the Statute 1. Overcoming Problems Through Bottom-Up Innovation 2. MDL's Relationship to Other Forms of Aggregation Litigation 3. Structural Differences Between Procedure-Making in MDL and Administrative Agencies D. The Rule-of-Law Debate Revisited 1. Conceptual Background 2. MDL's Parallels to Midcentury Administrative Law 3. MDL's Departures from the Administrative Rule of Law IV. ADAPTING MDL TO THE ADMINISTRATIVE RULE OF LAW A. The Misguided Quest for MDL Rules B. Structural Reforms 1. Standards and Reason-Giving 2. Transparency 3. Accessibility 4. Accountability C. The Question of Statutory Authority CONCLUSION INTRODUCTION

In a widely publicized December 2017 order, the Judicial Panel on Multidistrict Litigation (JPML) transferred all litigation involving the sale and distribution of opioids that was pending in federal court to the Northern District of Ohio for coordinated pretrial proceedings. (1) No sooner had the cases been transferred to Ohio than the judge assigned to manage them, Dan Aaron Polster, announced he did not intend to follow the usual order of business under the Federal Rules of Civil Procedure (FRCP). (2) "The federal court[s]," Polster said, "[are] probably the least likely branch of government to try and tackle" the opioid crisis. "[B]ut candidly, the other branches of government, federal and state, have punted." (3) Noting that around 150 Americans were dying every day from opioid overdoses, Polster declared he wanted the parties to devise a settlement that would "do something meaningful to abate this crisis." (4) And he wanted it within a year. (5)

Twenty months into the litigation, Judge Polsters attempts to forge a global opioid settlement had yet to bear fruit. (6) His remarks, however, provide a revealing window into the world of modern multidistrict litigation, or simply "MDL." From the Deepwater Horizon disaster to the opioid crisis, MDL has become the preeminent forum for working out solutions to the most intractable problems in the federal courts. (7) To do so, judges and lawyers devise ad hoc solutions to problems of organization, settlement, and management that arise in particular cases. As expressed by one judge: "I see ways to change course each time, new ways to tweak it .... Every case is different." (8) As expressed by another, "Practices are always evolving." (9)

As MDL has grown in importance, critics have charged that its procedural flexibility violates the rule of law. The charges come from both sides of the "v." Focusing on MDL'd plaintiffs, legal scholars contend that MDL's lack of regular procedure allows the lawyers who control it to enrich themselves at the expense of plaintiffs for whom they perform "common benefit" work. (10) At the same time, large corporate defendants have joined longstanding academic complaints about MDL's ad hockery. (11) Citing statistics that purport to show that MDL'd cases make up more than 40 percent of the federal docket, defense groups argue that MDL's unstructured procedure encourages the filing of meritless claims and subjects them to unfair settlement pressure. (12)

The attack on MDL took on new urgency as the corporate defense bar mobilized behind reforms that would subject MDL to its own procedural rules. (13) In late 2017, three interest groups persuaded the Advisory Committee on Civil Rules to form a subcommittee to study MDL-specific amendments to the FRCP. (14) If those amendments are adopted, MDL would for the first time be subject to rules other than those in the ordinary Federal Rules. (15) Also in 2017, the House of Representatives passed H.R. 985, the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act," which included several MDL-related provisions. (16) Neither the new subcommittee nor H.R. 985 is likely to result in immediate changes to MDL procedure. (17) But they reflect a well-organized, well-funded effort to reform MDL. That project is explicitly premised on the view that MDL as now practiced violates the rule of law. (18)

Does it? This Article argues that one cannot answer that question without a better understanding of what MDL is. As this Article shows, MDL is not simply a super-sized version of the litigation that takes place every day in federal court, but a form of public administration that blends tools of ordinary litigation with tools of institutional design more commonly found in programs such as Social Security. As such, MDL is properly judged against the "administrative" rule of law that emerged in the United States in the decades following World War II. From this perspective, MDL's ad hockery is less of a concern than the fact that it lacks structural features that underpin the legitimacy of the federal administrative state.

The attack on MDL draws on a conception of the rule of law that equates it with fair procedures laid down in advance of disputes. (19) The use of such procedures ensures that courts resolve cases in a predictable manner. To some, they are essential to the very idea of adjudication. For example, Lon Fuller argued that "adjudication must act through openly declared rule or principle, and the grounds on which it acts must display some continuity through time. Without this, joinder of argument becomes impossible and all the conventional safeguards that surround decision ... forfeit their meaning". (20)

But this understanding of the rule of law is hardly the only one relevant to the legitimacy of novel governmental institutions. In countless federal programs, Congress delegated open-ended authority to an administrative agency to overcome Congress's own inability to anticipate the procedures needed to resolve future cases. MDL follows their lead. The system's enabling statute, the Multidistrict Litigation Act of 1968, first authorizes the JPML to centralize cases before a single district judge. (21) It then directs the judge to conduct "coordinated or consolidated pretrial proceedings" (22)--a directive that judges have interpreted as an instruction to develop ad hoc procedures to overcome emergent problems. In all of this, MDL follows a pattern familiar from federal administrative programs, using courts rather than administrative agencies as its delegate.

If MDL's procedural flexibility is no big deal, however, other aspects of its model of aggregate litigation are a source of concern. Responding to criticisms remarkably similar to those leveled at contemporary MDL, midcentury legal reformers devised alternative structures to protect against arbitrary action in administrative programs that were not governed by regular court procedures. (23) In brief, those structures aimed to ensure the transparency of the administrative process (e.g., by requiring advance notice of certain actions), (24) the accessibility of the process (most notably by guaranteeing "an opportunity to participate" in rulemaking (25)), and liberal opportunities for judicial review of agency action. Those structures contributed to a distinctive administrative conception of the rule of law, which played an important role in establishing the legitimacy of the modern administrative state. And they are largely lacking in MDL. The problem, then, is not that MDL is ad hoc. Rather, it is that MDL lacks the guarantees of transparency, public participation, and ex post review that underpin modern administration.

This point has a number of implications for debates over MDL reform. Recognizing the vulnerability of a system that operates without regular procedure or the guarantees of reasoned decisionmaking that apply to administrative agencies, corporate defendants and their allies have proposed reforms that would cripple MDL's utility as a forum for controversies that cannot be resolved through regular procedure. For example, Andrew Pollis proposes that any of the thousands of...