UNORTHODOX CIVIL PROCEDURE: MODERN MULTIDISTRICT LITIGATION'S PLACE IN THE TEXTBOOK UNDERSTANDINGS OF PROCEDURE.

• Author: Gluck, Abbe R.
• Position: Special Issue on Class Actions

INTRODUCTION 1671 I. UNORTHODOX CIVIL PROCEDURE: MDLS AND THE WORLD BEYOND PROCEDURE 1677 II. NATIONALISM V. FEDERALISM 1681 A. The Race to the Courthouse: Horizontal Parity, not Sovereignty, Is the Issue 1682 B. Evolving Procedure Doctrine for the National Context 1684 C. General Jurisdiction as an Example of Modernizing Procedure? 1685 III. THE FRCP v. A FEDERAL COMMON LAW OF MDL PROCEDURE 1687 A. MDL Exceptionalism when It Comes to the Rules 1689 B. Transparency 1689 C. The Creation of MDL Common Law 1691 D. MDL as Delegation 1693 E. Unorthodox Lawmaking, Redux 1694 IV. MDL, ACCESS TO COURT, AND THE CLASS-ACTION COMPARISON 1695 V. MDLs AND THE TRADITIONAL INSTITUTIONAL ARRANGEMENTS OF CIVIL PROCEDURE 1698 A. Horizontal Federal Judicial Relationships and the New Judicial Elite 1698 B. Relationships With and Among Counsel: The Dominance of Consent 1699 C. Horizontal Judicial Relationships Across State and Federal Systems 1703 D. The Final Vertical Relationship: Appellate Review 1706 E. A Snapshot of MDL Appellate Review 1707 CONCLUSION: UNORTHODOX CIVIL PROCEDURE 1709 INTRODUCTION

From the very first paragraph of the Federal Rules of Civil Procedure (FRCP)--in which is set forth the goal of the "just, speedy and inexpensive determination of every action" (1)--it is evident that the system is anchored in a set of competing norms and tensions. The rules and doctrines of the field themselves may be understood as mechanisms to effectuate this constant mediation of tradeoffs. There is the structural tradeoff between federalism and nationalism, evident in procedure's theories and doctrines of jurisdiction and choice of law. There is the negotiation between transsubstantive, or "one size fits all," rules of procedure and rules that are instead tailored to particular kinds of cases. (2) And the system struggles with the competing norms linked together by Rule 1, that is, between access to justice and efficiency. Through it all is a meta-debate about the value of the FRCP themselves as a system-organizing mechanism, and the process by which the rules are made--a process very different from what emerges when judges make procedure in common law fashion. To understand these systemic tensions is also to understand the institutional arrangements that the rules and doctrines of procedure have painstakingly arranged. Central to those arrangements are the horizontal and vertical relationships among the system's key players--clients, lawyers, and judges (both state and federal)--who interact with one another, sometimes as adversaries, other times as peers and collaborators, and still other times as superiors and inferiors, in the more traditional hierarchies of the judge--lawyer relationship and appellate review.

Enter multidistrict litigation. The so-called "MDL" is an old-but-new procedural tool that significantly disrupts many of these worked-out equilibria. The MDL is unorthodox, modern, non-textbook, civil procedure. It also may be a symptom of deeper pressures now on the system to recalibrate even more of procedure's traditional normative and doctrinal baselines.

But this does not mean that MDLs are rare, or even new. Born fifty years ago as the quieter sibling of class actions, the MDL has recently evolved from its initial purpose--to accommodate a rash of antitrust litigation against electrical equipment manufactured (3)--into a more central procedural mechanism than ever imagined. Today, actions consolidated in MDLs comprise thirty-nine percent of open cases on the federal docket. (4) Thirty-nine percent--a number that tends to shock even those law professors who teach procedure, because MDLs have attracted so little attention in academic work (5) or the casebooks. (6) The average number of pages devoted to MDLs in the leading first-year civil procedure casebooks is two. (7)

MDLs are unorthodox because they are workarounds to the currently accepted baselines of civil procedure: the FRCP as preferred over common law rules; federalism considerations; traditional institutional relationships; and--in the ultimate unorthodox workaround--MDLs are designed to avoid trial itself. Although styled as a mechanism for only pretrial resolution of cases unamenable to class action but with sufficient similarities to justify some consolidation, (8) it is the worst-kept secret in civil procedure that the MDL is really a dispositive, not pretrial, action. MDL judges, unlike judges even in class actions, do not generally manage to trial or even to the possibility of trial. (9) Only about three percent of cases remand to the originator (transferor) district judge; all others settle in or are resolved--for instance, through summary judgment--by the MDL court. (10) That is a shocking statistic when one considers the mandate of the MDL statute itself, which provides that any MDL "action . . . shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred." (11) By all accounts, the statute's idealized vision differs dramatically from the real-world practice of MDL. Indeed, most MDL cases are understood by all involved to be unamenable to trial at the outset. As one judge put it, "[i]t's the culture of transferee courts. You have failed if you transfer it back."

MDLs are modern because they see the need for a national, not state-centered, approach to questions of jurisdiction and even choice of law. The way MDLs respond to this challenge also is emblematic of bigger forces pushing procedure in a multitude of different areas. MDLs are the product of the nationalization of the modern economy and a symptom of the lack of tools inside the FRCP to accommodate those changes.

MDLs also depend almost entirely on consent and, in turn, disrupt traditional relationships among their players, turning judges and lawyers into deeply collaborative partners in (as one judge put it) "practical problem solving." MDLs have created a judicial elite among the federal judges chosen to lead them, subverting the baseline premise of horizontal equality among federal district judges and instantiating Judge Richard Posner's view that federal judges, with life tenure and little prospect for formal promotion, are eager to find some way to distinguish themselves from the pack. (12) The MDL judge in many ways acts more like a modern administrator than the judge the FRCP envisions, not least because, like agencies, the particular MDL judges who are chosen for these cases are delegated to specifically for their expertise in practical administration. (13)

Finally, MDLs exemplify procedural exceptionalism. This is a type of litigation that judges insist is unique, too different from case to case to be managed by the transsubstantive values that form the very soul of the FRCP. Instead, judges develop their own special MDL procedures, often in collaboration with specialist lawyers, that build on previous MDLs or analogous actions. As a result, what has emerged is essentially a federal common law of MDL procedure. Yet, in another deviation from the norm, this common law is rarely treated as precedential or even subject to the customary judicial appellate review.

These deviations from the painstakingly crafted textbook of procedure have caused academic anxiety. Many scholars worry about the lack of MDL transparency, the loss of the individual claim, and the dearth of uniform MDL procedural law. (14) Some put MDLs together with arbitration as another mechanism that undermines trial and the traditional class action. (15)

But of course, 99% of all filed civil cases today are resolved without trial. (16) The FRCP also now gives judges broad case management discretion in all kinds of cases and encourages a general managerial approach. My goal is not to convince the reader that the MDL is unique. Rather it is to present the MDL as a perhaps extreme example of developments in procedure that may tell us something about the modern pressures on the system, both in traditional cases and otherwise. These pressures are likely to produce only more unorthodoxies over time. (17) And in the MDL context, the deviations do tend to be especially far-reaching, with many judges adopting a discernable cowboy-on-the-frontier mentality that is not as apparent in other contexts. In other words, as the old saying goes, a difference in degree may convert into a difference in kind.

However labeled, the view from the ground seems very different from the view in the academy. This Article relies on lengthy and confidential oral interviews of twenty judges (fifteen federal, five state), each with significant experience in MDL litigation. (18) The federal judges who try these cases, and even some of the state judges who try parallel proceedings, are emphatic proponents of the MDL form. These judges describe MDLs as immensely satisfying, "roll up one's sleeves" work. They find MDLs superior to class actions, in large part because they feel they are better "litigated," even though they never go to trial. (This reveals another unanswered question: what does it mean to "litigate" in the modern era of infrequent trial?) What's more, MDL judges resist at all cost imposing rules--whether in the FRCP or through uniform federal procedural common law--on the MDL process.

This Article focuses on large MDLs, which the judges described as quite different from smaller ones. It is the unique pressure of managing hundreds, often thousands, of individualized claims in the aggregate that has birthed the procedural unorthodoxies that are the subject of this Article. To appreciate the scale of these large MDLs, note that the vast majority of cases on the MDL docket have been consolidated into a very small number of MDLs--in March 2017, for instance, 87% of cases were consolidated into only 18 MDLs, each with 1000 or more civil actions. (19)

MDL judges deny that MDLs undercut the individual case or individual access to justice. Instead, they argue...