MDL as Public Administration

David L. Noll*

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.

*Professor of Law, Rutgers Law School; This Article benefit- ted from presentations at the Administrative Law New Scholarship Roundtable at University of Wisconsin School of Law, the Civil Procedure Workshop at Stanford Law School, the Junior Faculty Federal Courts Workshop at the University of Oklahoma College of Law, and from many informal discussions with MDL practitioners and judges at the NYU Center on Civil Justice’s Fall 2018 Conference on “MDL at 50.” Thanks to Nicholas Almendares, Jack Beer- mann, Bob Bone, Pamela Bookman, Christina Boyd, Andrew Bradt, Elizabeth Chamblee Burch, Maureen Carroll, Jessica Clarke, Bethany Davis Noll, Allan Erbsen, David Freeman- Engstrom, Abbe Gluck, Andrew Hammond, Alyssa King, Kati Kovacs, Alexi Lahav, Matthew Lawrence, John Leubsdorf, Dave Marcus, Linda Mullenix, Jonathan Nash, Teddy Rave, Ellen Relkin, Glen Staszewski, Adam Zimmerman, and participants at those events for valuable feedback. Usma Ashraf-Khan provided clutch research assistance.

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