Private Law Theory

ABSTRACT
In mass tort multidistrict litigation (MDL), existing scaling up devices have failed to generate significant efficiency gains. This Essay suggests a novel device: Issue Presumption. Where courts possess the greater power to apply issue preclusion, courts may instead apply issue presumption to shift the burden of persuasion against the losing party in subsequent cases. By scaling up in MDLs through this softer, more flexible approach, courts can capture lost efficiency gains.

Soh, Leo J and Stehle, Jared, Less is More: Issue Presumption in Mass Tort MDLs (March 9, 2025), New York University Law Review Online (forthcoming 2025).