Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation

ABSTRACTFaced with the emerging phenomenon of complex litigation-from school desegregation to mass torts-the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back, from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties' resolution of the case, whether through settlement or remand for trial. But as transferee judges increasingly focus upon efficiently directing and sequencing litigation, their procedural and structural decisions can often have unanticipated consequences for the parties' strategic aims. This Article therefore focuses not only upon identifying the emerging best practices for what I term "facilitative judges" in the first days of multidistrict litigation but upon the strategic consequences these practices have for the litigation.INTRODUCTIONWith increasing restrictions upon class action remedies, multidistrict litigation (MDL) has taken on a profoundly important role in not just the aggregate litigation system but also the judiciary as a whole. It has become the avenue for addressing many of our nation's largest mass actions, from deadly cars,1 to neurological injuries and murder-suicides by NFL players,2 and even litigation about the almighty iPhone,3 Google,4 and Facebook.5 These massive cases are not only reflecting areas of acute public concern but also of individual concern. Today, fully one-third of all federal cases are MDL matters.6 And, of these, 90% are coordinated into eighteen "mass-MDLs," which are comprised of more than 100,000 individual actions.7But how does one even begin to litigate a case involving tens of thousands of separate lawsuits? This is the position of the MDL transferee judge, who is charged with efficiently moving these massive cases to trial. Yet, the transferee judge is not given special powers or tools akin to those in Rule 23.8Transferee judges must instead rely upon special skills and innovative techniques, as well as strategic knowledge, far beyond those of the typical district court judge to successfully and efficiently resolve these high-stakes cases. In many ways, this distinction is known-the Federal Judicial Center and Judicial Panel on Multidistrict Litigation (JPML) offer annual trainings and special materials to teach transferee judges about the latest skills, techniques, and legal developments.9 Yet, our scholarship continues to focus narrowly upon isolated parts of the MDL cycle and attorney motivations rather than upon the shift in the judicial role.10This Article reconceptualizes the role of the MDL judge in these cases, arguing that transferee judges have necessarily evolved a new generation of techniques, taking a "facilitative" approach in contrast to the traditional adjudicative and managerial judge models. I utilize the term facilitative because the judges structure not only their role but the entire MDL process with the goal of facilitating the parties' resolution of the case-whether through settlement, final disposition, or remand.* 11 Under this model, the judge facilitates resolution through the structures they create12 rather than through actively and directly mediating the resolution, as managerial judges do.13Our early conception of the judicial role focused upon an external, objective judge simply balancing the parties' arguments and rendering an adjudicative decision on the merits.14 Thirty years ago, the managerial model took hold.15 MDL judges of the era were leaders in shaping this model; indeed, years before Professor Judith Resnik's description of managerial judges, Judge Weinstein was hammering out the Agent Orange settlement. …