In this Article, we address one of the most controversial and current questions in federal civil procedure: What is the proper role of the judge in the settlement of mass-tort multidistrict litigation, or MDL? Due to the Supreme Court’s hostility to class actions, MDL proceedings have begun to dominate the federal civil docket. To wit, more than one third of the federal civil caseload is MDL. Although MDL is structurally different from a class action, the procedure replicates—and in many ways complicates—the principal-agent problems that have plagued the class action. Like class actions, nearly all MDL cases are resolved by a comprehensive global settlement agreement. But, unlike class actions, in MDL cases the judge has no authority to reject a settlement agreement as unfair to the potentially thousands of parties ensnared in the litigation. Here, we argue that, given this limitation, the judge should act as an “information-forcing intermediary.” The judge should reserve the right to offer a nonbinding opinion about the fairness of the settlement to send an easy to understand signal directly to the parties about their lawyers’ performance. Such a signal will mitigate many of the agency problems inherent to MDL and allow parties to exercise informed consent when choosing whether to accept a settlement. More generally, this Article is a call for judges to embrace an information-forcing role at the head of consolidated MDL proceedings.
Intimate partner abuse (IPA) is a problem that affects millions of women across the United States every year. Traditionally, strategies designed to help victims and reduce IPA have tended to focus on women of childbearing age. However, older women who experience abuse at the hands of male partners are often left out of the conversation. […]
Data flows continuously across national boundaries. The current model of regulation for data privacy, an essential component for safe data flow, relies impractically on jurisdiction-specific rules. This practice impedes the benefits of data, which are increasingly a necessary and integral part of day-to-day life. A look at the history of data privacy reveals that this […]
California’s Sustainable Groundwater Management Act (“SGMA”) allows local entities that represent landowners, government agencies, or private companies, rather than the public, to take on exclusive power to regulate and manage imperiled groundwater resources. In at least some cases, under SGMA these entities are governed and controlled in ways that violate the one person, one vote […]
Conflict between agencies and outsiders—whether private stakeholders, state governments, or Congress—is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound. In President Obama’s administration, there was the battle between the Federal Bureau of Investigation and the Department of […]
In December 2015, Congress passed the Every Student Succeeds Act (ESSA), which redefined the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of the NCLB, Congress failed to devise […]