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Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their "inherent powers as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering that these attorneys be compensated through a "common benefit" assessment on the recoveries of certain clients in the litigation; (c) reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel; and (d) reviewing private settlement agreements. Professors Robert Pushaw and Charles Silver have recently offered the most thorough analysis to date of judges' assertions of their inherent powers when managing MDLs and have concluded that the courts' inherent powers do not properly extend to any of these four actions. In this Article, I critically examine the arguments put forward by Pushaw and Silver. Offering my own analysis within theirinherent powers framework, I agree with Pushaw and Silver's conclusion that the inherent powers of the federal courts do not properly extend to reducing the total contractual fees that plaintijfs agree to pay their individually retained counsel or to reviewing private settlement agreements. However, I find unpersuasive their analysis regarding the appointment and compensation of MDL leadership attorneys. I conclude that MDL courts do have authority to appoint lead attorneys and to order that these attorneys be compensated through a common benefit assessment on the recoveries of certain clients in the litigation. [ABSTRACT FROM AUTHOR]

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process. Engaging in this practice--marshaling procedure to increase justice for marginalized groups and to decrease procedural subordination and white supremacy--is a form of what I am calling resistance proceduralism. I draw from engagement with procedures, such as requirements to file a lawsuit or for bonds and securities, in my ancestors' freedom suits--lawsuits fighting for their freedom from slavery--to query whether some marginalized litigants, and even people who were enslaved at the time, may have engaged in resistance proceduralism. [ABSTRACT FROM AUTHOR]

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a very wide range of people who are involved in the execution of the laws. Some statutory provisions are also treated this way; consider the idea that the term "air pollutant" necessarily includes greenhouse gases. Those who draw extravagant inferences might be engaged in a form of motivated reasoning; their (unarticulated) values and preferences might be responsible for the particular inferences they draw. Alternatively, they might be engaged in an unacknowledged form of Dworkinian reasoning, in which they are attempting to make the best constructive sense out of a legal term. [ABSTRACT FROM AUTHOR]