The Case Against MDL Rulemaking

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There is currently no uniform set of federal rules governing MDL proceedings. But this could soon change. In November 2017, the Advisory Committee on Civil Rules first addressed the possibility of creating new rules specifically for MDL. In the three years since then, the Advisory Committee has appointed a Subcommittee to seriously study the need for MDL-specific rules, and the Subcommittee has narrowed its focus to rulemaking in three areas: early vetting to weed out meritless claims, opportunities for interlocutory appellate review, and settlement review. Although some of these topics are more appropriate for rulemaking than others, this Comment argues that the Subcommittee should decline to move forward with any rule proposal. MDL-specific rules cannot be squared with either the purposes of § 1407 or the twin aims of the Federal Rules of Civil Procedure—efficiency and fairness—and should therefore not be adopted.

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