Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure

Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old-but-new procedural tool that significantly disrupts decades of worked-out doctrinal equilibria—and, now comprising a shocking 39% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism over federalism, consent over adversity, procedural exceptionalism over transsubstantivity, and common law over the Federal Rules. In other words, the MDL takes what has generally been the losing side of procedure’s big theoretical and doctrinal debates; it is a symptom of deeper pressures on the system to recalibrate procedure’s traditional baselines. MDLs are modern because they see the need for a national, not state-centered, approach to questions of procedure. They disrupt traditional legal relationships, turning judges and lawyers into collaborative partners in practical problem solving and creating a new judicial elite among the federal judges chosen to lead them. MDLs exemplify procedural exceptionalism—a type of litigation that judges insist is too different from case to case to be managed by the transsubstantive values that form the very soul of the Federal Rules. Instead, judges develop their own special MDL procedures—yet this new kind of procedural law is rarely treated as precedential or even subject to customary appellate review.