Northwestern Law profs Martin Redish and Julie Karaba offer a challenge to the MDL process which dominates mass injury tort litigation since the Supreme Court found the class action did not provide for a “day in court”. Does the MDL system undermine fatally the duty of the lawyer to the client, placing the interests of the group (and perhaps the lawyers) over that of the client to whom loyalty is owed?
“MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law….The most immediate response to reliance on the utilitarian calculus is that it completely ignores any concern with individual dignity or autonomy, which are properly deemed to provide the theoretical DNA of the Due Process Clause…Whereas class action in every case requires a transparent judicial finding of adequate representation of the interests of absent claimants, MDL has no such requirement. Whereas in most class actions absent class members have the right to opt out of the proceeding, MDL provides no means either for withdrawing from the proceeding or even meaningfully challenging the legality or propriety of inclusion within it. “- Redish &Karaba
via OTHERWISE: MDL Litigation: the Wild West and the smoke filled room – Redish & Karaba //Boston University L. Rev..