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Judging Multidistrict Litigation, Elizabeth Chamblee Burch
Judging Multidistrict Litigation, Elizabeth Chamblee Burch
Presentations and Speeches
Professor Elizabeth Chamblee Burch presented "Judging Multidistrict Litigation" at Duke University School of Law's Mass-Tort MDL Program for Judicial Conference Committees on October 8, 2015.
Judging Multidistrict Litigation, Elizabeth Chamblee Burch
Judging Multidistrict Litigation, Elizabeth Chamblee Burch
Scholarly Works
High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.
Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …
Remanding Multidistrict Litigation, Elizabeth Chamblee Burch
Remanding Multidistrict Litigation, Elizabeth Chamblee Burch
Scholarly Works
Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …
Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge
Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge
Scholarly Works
Faced 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 …