ABSTRACT
If the 1970 decision in Goldberg v Kelly marked the heyday of a focus on plaintiffs’ constitutional rights in civil procedure, the years since then have been largely defendant-centric, with decades of due process jurisprudence now developed to protect where and how defendants can be sued. But that defendant-centricity is beginning to change. We focus in this essay on a theory of what we call ‘plaintiffs’ process’, and argue for its more salient consideration in civil procedure doctrine.
The problem is that MDLs lack established doctrines of adequate representation and participation that, in the class-action context, at least attempt to require attorneys to be loyal proxies for plaintiffs’ individual interests. Also absent is the requirement that MDLs be cohesive or attain a level of commonality – a requirement that in class actions forces attorneys to speak for everyone because everyone’s claims are similar enough. Third is the ability to opt out. MDLs have none of these protections.
But the bigger problem is that without MDL, individuals without means or leverage might not be able to access courts at all. Resnik herself has acknowledged greater appreciation of that aspect of MDL as ‘ordinary-course’ suits are harder to bring. Our goal in this essay is thus to fuse two major strands of Resnik’s pathbreaking work: MDL’s epidemic of ultra-creative, settlement-and-case-management-focused judging, combined with the difficulties and inequities attendant to accessing court today. Even as MDL has re-opened courthouse doors that the Court’s aggregation doctrines have closed, its case-management-driven unorthodoxies pose significant risks to their due process rights.
Burch, Elizabeth Chamblee and Gluck, Abbe R, Plaintiffs’ Process: Civil Procedure, MDL, and a Day in Court (September 9, 2023), 42 Review of Litigation 225 (2023).
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