Search

This Article analyzes the so-called Field of Dreams problem in multidistrict litigation (MDL). Once an MDL is up and running, the story goes, plaintiffs' lawyers flood the proceeding with meritless claims in the hopes that they will be swept into a global settlement before anyone ever looks closely at them. Critics have called this the most pressing problem with MDLs today and lobbied both Congress and the Federal Rules Committee for MDL-specific rules to address it. This Article analyzes the empirical and normative dimensions of the MDL Field of Dreams. While the empirical evidence behind existing complaints about meritless claims in MDL is exceedingly thin, the economic intuition behind the phenomenon is quite plausible: if you reduce the cost of litigation, as MDL does, more claims with lower expected values will enter the system. Assuming, then, that some significant portion of those new claims are meritless, this Article asks, what, exactly, is wrong with that? It examines several potential problems an influx of meritless claims could create from both the defendants' and plaintiffs' perspectives. While some of these concerns are serious, others are overblown. And the types of claims that garner the most criticism-those filed by people who have not been exposed or injured-are actually the least problematic. Many of the real problems that the Field of Dreams creates can be addressed through private ordering and case management techniques that are within the existing powers of the MDL judge and do not require a radical overhaul of MDL procedures. [ABSTRACT FROM AUTHOR]

In multidistrict litigation, as elsewhere, personnel is policy. As MDL has become a major site for aggregate litigation, commentators have raised concerns that large-scale products liability cases are unduly influenced by a small cadre of elite lawyers whom courts repeatedly appointed to serve in the most powerful MDL leadership roles. Repeated appointments of these "repeat players," commentators worry, facilitate self-dealing, suppress dissent, and aggravate conflicts of interest seen in other areas of aggregate litigation. These concerns about MDL overlap with broader concerns across the bench and bar about the degree to which white people and men dominate important leadership posts, to the exclusion of younger attorneys, women, LGBTQ+ people, and attorneys of color. In response to these concerns, prominent authorities urged MDL courts to adopt a number of reforms. They recommended that judges appoint leaders through open, competitive processes; create additional leadership posts and committees; and appoint leaders for limited terms in order to create more opportunities for new attorneys to participate in leadership. But, outside of a handful of highly publicized cases, we have little empirical evidence of whether MDL leadership appointments changed in the ways that reformers proposed. This Article-part of a larger, ongoing study of the nature and functions of MDL leaders and the MDL model of aggregate litigation begins to fill that gap. Drawing on a dataset of thousands of filings and orders that were entered in sixty-eight products liability MDLs pending in June 2019, we report data on the size, composition, and appointment process for MDL leadership slates, and changes in the makeup of leadership slates in the eighteen-year period our dataset covers. Our data tentatively suggest that reformers' calls for larger, complex leadership slates and frequent competitive leadership appointment processes went unheeded. Examining trends in the size and structure of MDL leadership slates in products liability MDLs, we find little evidence that courts implemented the structural changes that the reformers suggested. Yet, while leadership appointment practices and the complexity of MDL leadership slates do not appear to have changed during the period we studied, we find intriguing changes in who is being appointed to leadership posts. Slightly less than a quarter of leadership appointments in our data went to female attorneys, suggestive of only a trivial increase in women's representation on leadership slates compared to earlier studies. But the majority of leadership appointments also did not go to super-elite repeat player attorneys. And, comparing our findings with earlier work that examined MDLs pending in 2013, we find substantial movement in the attorneys and firms whom MDL courts appointed most frequently to leadership posts. These findings complicate received wisdom about MDL leadership posts. While we document considerable continuity in who is being appointed to MDL leadership posts and how, our data are suggestive of a deep bench of potential future MDL leaders for judges to choose from, as well as the opportunity for even further change in the future. [ABSTRACT FROM AUTHOR]

The article examine the practice of forced fee transfers in Multi-District Litigations (MDLs) and whether the law of restitution and unjust enrichment supports such fee awards. It argues that MDL procedures often violate the law and judges regulate fees more aggressively in MDLs than in other types of litigation. It further highlights that judges in MDLs has the authority to override the contractual entitlements of individually retained plaintiffs attorneys (IRPAs).

Drawing on qualitative empirical research, this Article reports and explains the unusual role of insurance in mass tort litigation. In contrast to ordinary tort, corporate governance, and securities litigation: (1) mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants' liability insurance. except in the insolvency or near-insolvency context; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their liability insurers. if any, later; and (4) many mass tort plaintiff law firms rely on non-recourse litigation funding that resembles the earliest forms of commercial insurance-bottomry and respondentia-and there is an emerging insurance market that reduces the cost of this funding and may one day supplant it. In addition to providing a new understanding of the role of insurance in mass tort litigation, this research provides empirical support for two of the conceptual insights in Kenneth Abraham's The Liability Century : (1) the mismatch between product liability and product liability insurance that emerged near the end of the twentieth century and (2) the increasingly insurance-like function of tort law. [ABSTRACT FROM AUTHOR]

This Article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. We learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony-court judges serving as lower court judges; and more. We detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in. Contrary to common assumptions, the potential benefits of regulated involvement of the judge include more informed sentencing by judges, as well as less coercion and uncertainty for defendants facing early plea offers. Our qualitative evidence also raises intriguing hypotheses for future research. [ABSTRACT FROM AUTHOR]