In addition to the writing we do for this blog, we make occasional forays into actual scholarship.
The most recent example appears in the current issue of the Tulane Law Review, to which one of your humble scribes (Herrmann) and one of his colleagues at Jones Day (Pearson Bownas) contributed “An Uncommon Focus on ‘Common Questions’: Two Problems with the Judicial Panel on Multidistrict Litigation’s Treatment of the ‘One or More Common Questions of Fact’ Requirement for Centralization.”
The article raises two points about the requirement that a “common question of fact” exist as a prerequisite for centralization by the MDL Panel. First, the article criticizes the MDL Panel for occasionally opining on whether common questions of fact “predominate” when making the decision to coordinate cases. That issue is irrelevant to the MDL Panel’s decision and is better addressed by a trial court deciding the question of class certification.
Second, the article suggests that the Panel occasionally overlooks the benefits that could arise from coordinated discovery of issues other than the core liability of the defendants.
If you’re interested in seeing a reprint of the article, just whistle.