MANAGEMENT AND JUDGING IN MULTIDISTRICT LITIGATION

<p>This essay, written for a symposium celebrating the 40th anniversary of Professor Judith Resnik's pathmarking article <i>Managerial Judges</i>, examines the managerial role of judges in multidistrict litigation (MDL), which allows related cases filed all over the country to be temporarily transferred to a single federal judge for coordinated pretrial proceedings. MDL judges have been managerial judges since well before Professor Resnik coined the term in 1982, taking an active role in pretrial case management and often overseeing the administration of mass settlements. But for all of their power and discretion over pretrial and postadjudication management, the one thing that MDL judges cannot do is try transferred cases. As the Supreme Court held in <i>Lexecon v. Milberg Weiss</i>, before a trial can occur, a case transferred under § 1407 must be remanded to the district where it was originally filed. Thus, as I will argue in this essay, MDL presents managerial judging in its pure form. The MDL judge’s primary role is case management; adjudication is mostly left to other judges. This separation is not complete, of course. While MDL judges cannot try transferred cases, they do sometimes conduct bellwether trials of cases filed directly in the MDL or by party consent. And MDL judges engage in plenty of adjudication when they decide pretrial motions to dismiss, motions for summary judgment, <i>Daubert</i> motions, and the like. Like many other features of MDL, the formal ideal does not always match the reality on the ground. But the fact remains that many of the most important jobs of the MDL judge are managerial: appointing steering committees of lawyers; authorizing consolidated pleadings; issuing case census orders; distributing plaintiff “fact sheets”; setting up common benefit funds to compensate lead lawyers; and overseeing (and sometimes approving or rejecting) settlements. To the extent that MDL judges do engage in adjudication (e.g., in deciding dispositive motions), it is often in service of managing the litigation. Even bellwether trials are designed more to generate information for settlement than to adjudicate the rights of the parties. And the quintessential form of adjudication—trial—is primarily left to other judges. In one sense, MDL answers Resnik’s critique that management gives judges a stake in the cases they handle and thus erodes their impartiality when it comes to judging. MDL separates the management from the judging. The judicial manager will not be the trial judge—at least in theory. The not-so-secret reality of MDL, however, is that very few cases are ever actually remanded for trial; the vast majority are resolved in the MDL either through pretrial motion or settlement. In another sense, then, MDL confirms what Resnik may have suspected all along: the management is more important.</p>