NewYorkUniversity
LawReview
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Volume 96, Number 1

April 2021
Articles

MDL Revolution

Elizabeth Chamblee Burch, Abbe R. Gluck

Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.

Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to it—MDL is finally in public view. State attorneys general have resisted the opioid MDL’s intense nationalism, its relentless drive to global settlement, its wild procedural innovation, its blurring of differences across state law, and its dramatic assertions of jurisdictional authority. Opiates is the most extraordinary MDL yet, but most big MDLs share many of its features, and Opiates is already the roadmap for the next mega-cases. Moreover, even as resistance to Opiates has dispersed some of the MDL’s early power, that resistance itself has come in the form of unusual procedural mechanisms.

MDL is designed for individual cases—giving similar suits filed in different districts an efficient pretrial process before sending them home for trial. In reality, that is pure fiction. Few cases ever return. And the MDL’s mode of coordination—from its anti-federalism stance to its insistence that each proceeding is too unique to be confined by the Federal Rules—chafes at almost every aspect of procedure’s traditional rules and values. MDL is not-so-secretly changing the face of civil procedure.

This Article weaves together for the first time these exceptional features of MDL and their disruption of procedure’s core assumptions. Is MDL a revolution? Or simply a symptom of a larger set of modern procedural tensions manifesting in many forms? Either way, it begs the question: What do we expect of litigation on this scale?

We recognize that MDL fills important gaps by providing access to courts but argue for some return to regular order to safeguard due process, federalism, and sovereignty. We suggest specific shifts—from more pretrial motions to new paths for appellate review, attorney selection, and jurisdictional redundancy—where the normative balance seems particularly out of whack; shifts we believe are in line with the spirit of Federal Rule 1’s own inherent paradox—the ideal of “just, speedy and inexpensive procedure.”

We also offer the first comprehensive analysis of the historic suits over the opioid crisis. Opiates is the first MDL that pits localities against their own state attorneys general in a struggle for litigation control. Its judge has publicly stated that solving a national health crisis that Congress dumped in his lap is different from ordinary litigation. Opiates has even invented a new form of class action. It is hyper-dialectical, jurisdictionally competitive, outcome-oriented, repeat-player-rich, fiercely creative procedure.

Cracking the Whole Code Rule

Anita S. Krishnakumar

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half Terms. The Article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions. The Article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons. For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third compare statutes that regulate entirely unrelated subject areas. Moreover, more than a few of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.

This Article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural choices. The Article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.

Populist Prosecutorial Nullification

W. Kerrel Murray

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.

In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.

This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: At least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.

Notes

Relying on the Unreliable: Challenging USCIS’s Use of Police Reports and Arrest Records in Affirmative Immigration Proceedings

Erica D. Rosenbaum

Although many scholars have recognized the need for increased procedural protections for immigrants in removal proceedings, very little attention has been paid to the process afforded to immigrants applying affirmatively to acquire lawful status. However, due to the collection of important interests implicated by affirmative immigration proceedings, procedure still matters even if deportation is not immediately at stake. This Note helps to fill the scholarly gap by discussing a relatively recent phenomenon in affirmative immigration practice: U.S. Citizenship and Immigration Services’ requests for and reliance on police reports, arrest records, and other documents underlying any contact an applicant has had with the criminal justice system, even when the charges were ultimately dropped or the applicant was acquitted. This practice is particularly problematic in light of the unreliability of these documents, the role they play in the adjudication of applications, and the difficulty applicants face in appealing unfavorable decisions. Thus, this Note argues that not only is USCIS’s policy unlawful under the Administrative Procedure Act, but it also violates the guarantee of Due Process provided by the Fifth Amendment of the Constitution.

Fostering Discrimination: Religious Exemption Laws in Child Welfare and the LGBTQ Community

Adrianne M. Spoto

In response to increasing rights for LGBTQ individuals in the United States, particularly the Supreme Court’s affirmation of the right to same-sex marriage in Obergefell v. Hodges, eleven states have imposed laws or policies permitting child welfare organizations to deny services in accordance with their religious beliefs. These measures generally prohibit the state from “discriminating against” religious child welfare organizations by denying them funding or program participation when they refuse to provide services based on their religious beliefs. This Note provides an overview of these religious exemption laws and ultimately argues that, by requiring government funding of discriminatory child welfare organizations, the laws are unconstitutional under the Establishment Clause. The Note begins by considering relevant details about adoption and foster care systems in the United States. It then turns to the laws and policies in question, discussing their provisions, motivations, and impact. Then, taking two specific laws as examples, it analyzes these laws’ constitutionality, arguing for their invalidity under several approaches to understanding the Establishment Clause. By favoring certain religious viewpoints over others, permitting religion to dictate who receives government benefits and services, and imposing burdens on third parties (particularly LGBTQ prospective parents and youth), religious exemption laws ignore the line between church and state in violation of the Establishment Clause.

“Connote no Evil”: Judicial Treatment of the Secondary Boycott Before Taft-Hartley

Megan Stater Shaw

One of President Biden’s campaign promises, passing the Protecting the Right to Organize (PRO) Act, would remove the “secondary boycott” prohibition from the National Labor Relations Act, a provision which prevents unions from pressuring employers’ customers and associates in order to bargain with those employers effectively. This long-standing prohibition prevents unions and their workers from engaging in what is otherwise considered protected speech under the First Amendment, including picketing in public places. Some labor historians and commentators view the 1947 Taft-Hartley amendments, which codified the secondary boycott prohibition, as a reversal of liberal, New Deal policies. This Note shows, in fact, that both state and federal courts were deeply suspicious of the secondary boycott throughout the 1930s and 1940s. Even as state legislatures seemingly liberalized the law of labor protest in the early 1930s, state courts soon nullified these anti-injunction statutes through the application of common law tort principles. Likewise, the First Amendment right to picket declared by the Supreme Court in 1940’s Thornhill v. Alabama was quickly rolled back in the following terms when cases involving secondary picketing arrived at the Court. The history of the secondary boycott is not simply a cyclical one of repression, liberalization, and repression’s return. Labor advocates should approach reforms with a careful eye to prevent merely defederalizing the law of secondary boycotts by repealing the NLRA prohibition and leaving its regulation to the states, for even the most progressive jurisdictions in the New Deal era were hesitant to recognize secondary activity as a legitimate form of protest, and the Supreme Court’s First Amendment cases on labor protest leave little recourse for a legal challenge.