UH Law Center Spring 2019 External Speaker Series: Cornell Law School professor argues rules for multi-district litigation are misguided

Zachary Clopton of Cornell Law School addresses University of Houston Law Center students and faculty during a presentation in the Hendricks Heritage Room.

Zachary Clopton of Cornell Law School addresses University of Houston Law Center students and faculty during a presentation in the Hendricks Heritage Room.

March 4, 2019 - An expert in civil procedure said that attempts to devise specific rules and procedures about multi-district litigation are often misguided because not all cases present the same challenges. Zachary Clopton, an associate professor at Cornell Law School, made his remarks during his talk, "MDL as a category" last week in the Hendricks Heritage Room at the University of Houston Law Center.

Multi-district litigation, also referred to as MDL, is described as the consolidation of federal civil cases from two or more districts. It is currently one of the most central issues in civil procedure in federal courts, and Clopton noted that some estimates suggest MDLs take up 40 percent of the federal civil docket. They continue to rise in number and prominence.

"In recent years, MDL has boomed," he said. "It has been used to resolve some of our most public disputes - NFL concussions, the BP oil spill, opioid medications, Johnson & Johnson baby powder - these are all controversies that have been sent to an MDL."

Clopton said that many MDLs focus almost on mass torts, but others are small numbers of individual cases or class action cases that have been consolidated together.

"There is a small number of massive and unwieldy cases that may demand special procedures," he said. "But many MDLs that are not those cases. Treating this small set of massive MDLs as representative of MDL overall is an error and gives a misleading picture. I want to try to dispel what I think is the conventional wisdom about what MDL is.

"This category error permeates not just reform efforts, but a lot of academic literature, judicial training programs and the whole conversation about MDLs."

Clopton said legal scholars should be thinking more about what he called the nearly unconstrained authority that has been vested in the judicial panel on multi-district litigation - the JPML. The JPML is a group of seven judges that can decide whether to consolidate cases into MDL proceedings and where to send them.

"The standard is typically low," Clopton said. "All the panel has to do is find one common question across the cases and to assert that consolidation will serve fairness and justice."

The Spring 2019 Distinguished Speaker Series will continue at noon every Monday in the Hendricks Heritage Room until April 8, except for March 11 during spring break. The next speaker is Nicholson Price of the University of Michigan Law School.

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