Andrew D. Bradt,
The Long Arm of Multidistrict Litigation, 59
Wm. & Mary L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2792
Nearly 40 percent of the civil cases currently pending in federal court—now over 130,000— are part of a multidistrict litigation, or MDL. In MDL, all cases pending in federal district courts around the country sharing a common question of fact, such as the defectiveness of a product or drug, are transferred to a single district judge for consolidated pretrial proceedings, after which they are supposed to be remanded for trial. But the reality is that less than three percent are ever sent back because the cases are resolved in the MDL court, either through summary judgment or mass settlement. Surprisingly, despite that the MDL court is where all of the action in the litigation typically happens, that court need not have personal jurisdiction over the plaintiffs or the defendants under the rules that would normally apply. Indeed, even as the Supreme Court has clamped down on personal jurisdiction in recent years, the personal jurisdiction exercised in MDL has avoided rigorous analysis, for reasons that do not survive scrutiny. In this Article, I examine why MDL has avoided these fundamental questions, and suggest a new way of analyzing MDL under the Due Process Clause, focusing on the interests that the doctrine of personal jurisdiction attempts to vindicate, especially the assurance of forum that provides a fair opportunity to be heard. In particular, I explore the possibility of justifying MDL on the basis of a national shared interest in efficient dispute resolution, so long as such a justification adequately weighs the interests of the parties in a convenient forum.