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Many Minds, Many MDL Judges

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multi-district litigation, appellate review, jurisdiction


Courts | Judges | Law


My focus here is on a cost that has been surprisingly neglected by scholars but may be the greatest cost of them all: the accurate adjudication of legal claims and defenses. I suspect it is intuitive to most of us that asking one person to decide something instead of inviting many other people to weigh in probably reduces the quality of the resulting decision. There is a literature that formalizes this intuition called "many-minds" scholarship. It proceeds from a famous mathematics proof known as the Condorcet Jury Theorem. Although some people have questioned the applicability of many-minds theories to legal decisionmaking, if there were ever a legal context in which they could be applicable, I argue it is in the context of our MDL system.

If we find this literature persuasive, how can we bring more minds to bear on the legal questions in MDLs without undoing too many of the benefits of consolidation? Although I cannot undertake a full cost-benefit analysis here, I sketch out a partial analysis for two ideas: (1) more appellate review of decisions by MDL judges and (2) assigning MDLs to panels of judges instead of just one. The first idea fares worse on a cost-benefit analysis because appeals are sequential and take so long to resolve. Moreover, commentators have discussed increasing appellate review for many years and it has thus far been difficult to implement. Not only would it require lawmaking, but the contours of the proposal have been hard to write down on paper. I argue that these considerations make the second idea more appealing. Yet, it has received very little scholarly attention and requires no change in the law to implement.



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