Private Law Theory

Abstract:
Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old-but-new procedural tool that significantly disrupts decades of worked-out doctrinal equilibria – and, now comprising a shocking 40% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism over federalism, consent over adversity, procedural exceptionalism over transsubstantivity, and common law over the Federal Rules. In other words, the MDL takes what has generally been the losing side of procedure’s big theoretical and doctrinal debates; it is a symptom of deeper pressures on the system to recalibrate procedure’s traditional baselines …

Gluck, Abbe R, Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure (July 31, 2017). University of Pennsylvania Law Review, volume 165, no 7, 2017.

First posted 2017-08-05 06:34:36