The Other Shadow Docket

The JPML’s Power to Steer Major Litigation

Multidistrict litigation has become an increasingly important tool for aggregating claims. Whether an MDL is created in the first place is decided by a seven-member panel of federal judges, the Judicial Panel on Multidistrict Litigation (“JPML”). But the JPML decides not only whether to create an MDL; it decides also where and before whom to centralize MDLs for coordinated or consolidated pretrial proceedings. In deciding where and to whom to transfer cases arising under federal law, the JPML can consider the choice-of-law rule applicable in the transferee court. Under the dominant rule among federal courts, the MDL court applies its own law. As a practical matter, this means that the JPML has the power to steer an MDL to a particular court and to a particular judge, mindful of the law that will apply and how that law will affect the outcome of the case. Such a practice is not only contrary to a well-established norm against “matching” judges and cases. It also endows the JPML with an outsized power over these suits. This Article uncovers this largely ignored and considerable power of the JPML that enables it to achieve substantive ends through the nation’s MDL dockets. It evaluates two alternative choice-of-law rules. But, more importantly, it proposes that federal judges be randomly assigned to preside over MDLs—a solution that is more likely to be effective.

a. © 2022 Jennifer E. Sturiale, Assistant Professor of Law, Delaware Law School. Special thanks to Andrew Bradt, Steve Burbank, Noah Feldman, Chris Hoofnagle, Vicki Jackson, Troy McKenzie, David Noll, Aaron Perzanowski, Ted Ruger, Joe Singer, Will Thomas, Susannah Barton Tobin, Sasha Volokh, and Margaret Williams, with whom I had useful conversations during the drafting of this Article, as well as Robin Effron, Brian Fitzpatrick, Mark Lemley, Roger Michalski, Will Moon, Jennifer Oliva, Eloise Pasachoff, Brad Snyder, David Super, and Diego Zambrano, who provided invaluable comments. Harvard Law School Research Librarian Deanna Barmakian; Class of 2019 Harvard Law School student Dylan Herts; Class of 2021 Harvard Law School students Jordan Goodson, Noel Lee, Will Ossoff, and Jack You; and Class of 2022 Georgetown University Law Center student Sana Mesi-ya provided excellent research assistance. Finally, thank you to the editors of the University of Illinois Law Review, especially Editor-in-Chief, Clare Donohue, for their careful editing. All mistakes are my own.

The full text of this Article is available to download as a PDF.