Rick Marcus has published an article entitled, Cure-All for an Era of Dispersed Litigation? Toward a Maximalist Use of the Multidistrict Litigation Panel's Transfer Power, 82 Tulane L. Rev. 2245 (2008) (symposium on multidistrict litigation)(available from HeinOnline). Here is the abstract:
Since World War II, the American economy has coalesced so that mass production and distribution account for a much larger proportion of the goods and services Americans receive. During the same period, various legal theories -- particularly products liability and consumer rights -- have broadened the grounds on which producers of goods or services could be sued. Together, these developments have led to increasingly frequent dispersed litigation. During the same period, the Judicial Panel on Multidistrict Litigation has repeatedly used its transfer authority to combine dispersed cases raising common issues, often leading to combined resolutions or settlements of such litigation. This Article reviews the evolution and orientation of the Panel's consolidation activities against the background of modern procedure's preference for expansive combination of related claims and break from traditional procedure's "minimalist" attitude toward litigation combination. It explores the extent to which the Panel has adopted a "maximalist" attitude toward such combination and identifies some prudential concerns about pushing further toward a maximalist attitude.