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January 4, 2018

MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation

Litigation against the Trump administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the Travel Ban, multiply in federal courts around the country, an important procedural question has so far not been considered: should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.

This Essay argues that although the MDL statute would allow for consolidation of these public-law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process, and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass-tort litigation—and, indeed, it risks harming the national tort system more generally.