The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation

Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law - and does so with virtually no scrutiny from other judges. This power centralization promotes efficient case management, but it can be an anathema to our conception of decentralized justice. One instance of unreviewable pretrial error can have immediate and sweeping impact on thousands of cases in one fell swoop. It is time to restore the balance of judicial power. This Article argues for an expansion of non-discretionary interlocutory appellate jurisdiction over certain legal rulings rendered in MDL cases. Any opportunity to appeal before the end of the case reflects an inherent value judgment that the immediate rights at stake outweigh the burdens that interlocutory review imposes on the courts. The discretionary approach to interlocutory appellate jurisdiction has proven generally adequate. But it is not adequate in the context of MDL proceedings, where the risks and consequences of legal error are heightened considerably. Ultimately, MDL cases tend to settle rather than proceed to final judgment, so the appellate courts rarely have an opportunity to clarify the law, and the settlements are often mispriced as a result of the uncertainty. The absence of appellate review also deprives our jurisprudence of one of its central features - the back-and-forth negotiation of legal principles that occurs when multiple jurists grapple with the same legal questions. Certain interlocutory MDL orders, then, warrant mandatory appellate jurisdiction. To qualify, the order should involve a pure issue of law in an unsettled area or in contravention of established precedent, and immediate appellate review should potentially be dispositive of a significant number of cases in the MDL. The guaranteed availability of immediate review in these circumstances would not come without costs, but the benefits would far outweigh them. Indeed, the right of immediate appeal would ensure the integrity of the MDL process on which our legal system has come so heavily to depend