Who Will Manage Complex Civil Litigation? The Decision to Transfer and Consolidate Multidistrict Litigation

Abstract

The U.S. Judicial Panel on Multidistrict Litigation may transfer factually related actions filed in different federal districts to a single judge for consolidated pretrial litigation. This transferee judge has significant discretion over the management of the litigation, including ruling on dispositive pretrial motions. Nearly all cases are resolved without returning to the original district court. Thus, as a practical matter, the MDL Panel controls where these disputes will be litigated. And, the MDL Panel has substantial discretion in making that decision. In its first 44 years of existence, the Panel has transferred and consolidated nearly 400,000 lawsuits, including high‐profile securities and derivative lawsuits, large‐scale consumer actions, and mass torts involving products liability claims, common disasters, and air crashes. The Panel's transfer ruling has never been overturned. The current study provides the first systematic and comprehensive empirical investigation of the Panel's decision to transfer and consolidate pending federal civil lawsuits, examining the rationale for transfer and for the selection of a specific district court and judge to handle the consolidated litigation. We find that the Panel grants most motions to transfer and consolidate, but exercises meaningful discretion in choosing where and by whom the cases will be adjudicated. The MDL Panel is much more likely to assign cases to a district court where a current panelist sits and that is supported by at least one defendant and to a district judge who currently serves on the Panel. Thus, the composition of the Panel has a meaningful effect on where and how large‐scale litigation will be resolved.

Representation on the Courts? The Effects of Trial Judges’ Sex and Race

“…In both instances, the judge serves as the fact finder and the law applier and also holds real potential to interpret the law. By comparison, while serving as a case manager (e.g., holding status and settlement conferences), supervising jury trials, or deciding whether to transfer a case, trial judges hold less decision-making discretion that could affect outcomes toward their preferred direction (e.g., Williams and George 2013). This is not to say, of course, that trial judges have no discretion in these parts of their jobs, but the important point is that the discretion that is present is, at best, indirectly linked to the case’s outcome and being able to drive that outcome toward favoring one party over another.…”

Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints

“…According to Eisenberg and Schlanger (), “for researchers seeking to identify all federal district court cases in a certain subject matter category, it is clear that the AO database [and its NOS code variable] is the easiest, and perhaps the most reliable, method of doing so …” After the selection of our 2,500 complaint sample, we found and removed two duplicate complaints (based on docket‐number errors; most duplicates were identified prior to the 2,500 case sample) and 62 complaints with no nonrelief causes of action. We also excluded 427 cases because they were a part of multidistrict litigation (MDL) and, as such, were likely subject to a different pleading process and overall litigation strategy than other cases (Williams & George ). After this data partitioning, we are left with a final sample of 2,009 complaints, all of which were filed between 2000 and 2008.…”

Does the Chief Justice Make Partisan Appointments to Special Courts and Panels?

“…I use a simulation model to assess a variety of factors that the Chief Justice might consider when making appointments, including political party, age, experience, and workload. I also compare appointments to the FISC to appointments that the Chief Justice makes to two other panels, the Foreign Intelligence Surveillance Court of Review (FISCR), which is the appeals court for the FISC, and the Judicial Panel on Multidistrict Litigation (JPML), which resolves jurisdiction questions for cases that cover multiple districts (Williams & George ; Lee et al ). Ruger () suggests that the FISCR should display similar levels of partisanship as the FISC, but the JPML should be less partisan, as its decisions are much more administrative and have less effect on policy.…”