New Frontiers for Resolving Aggregate Litigation in the United States: The MDL Experience

Abstract

The United States has long been at the forefront of evolving procedural approaches to aggregate dispute resolution, but the litigation landscape for resolving complex disputes has evolved greatly in the U.S. since the beginning of the twenty-first century. Throughout the late 1990s, the dominant mode for the resolution of aggregate litigation was the American class action, which has been in existence since 1938. This year, then, marks the 80th anniversary of the American experience of class litigation.  Nonetheless, American-style class litigation historically has been a difficult export to other legal regimes. Civil law systems, in particular, have had an uneasy relationship with engrafting American-style class litigation onto indigenous legal systems. While many continental and Latin American legal systems have looked to the American class action as a model for a procedural mechanisms for resolving mass claims, this focus on the American class action misses the shift to other procedural means in the United States.

Although class litigation certainly continues in the United States, this is no longer the most prominent modality for resolving aggregate litigation. The most dominant procedural auspices for resolving mass disputes has shifted to the so-called “multidistrict litigation,” commonly referred to by the shorthand, MDL procedure. This article explores the origins and contemporary usage of American MDL procedure, describing both the strengths and challenges of this form of aggregate dispute resolution.