We just noticed that Judge John Heyburn, the Chair of the Judicial Panel on Multidistrict Litigation, wrote this in the Tulane Law Review‘s MDL Symposium issue:
“The Author will leave to the bloggers the job of answering that eternal question: What is the difference between coordination and consolidation?”
John G. Heyburn II, “A View from the Panel: Part of the Solution,” 82 Tulane L. Rev. 2225, 2227 n.12 (2008).
So far as we know, we’re the only bloggers crazy enough to have raised that issue (here), so we’ve decided to be flattered by this reference. Thanks, Judge!
Judge Heyburn does, however, go on to say:
“Clearly the term ‘coordinated’ and the term ‘consolidated’ denote different judicial functions. And we are of the view that a judge deciding whether to consolidate actions for all purposes is necessarily performing a different judicial function than a transferee judge who is supervising coordinated or consolidated pretrial proceedings under Section 1407.”
Id. (quoting two decisions of the MDL Panel).
The American Law Institute’s Principles of the Law of Aggregate Litigation (Tentative Draft No. 1, Apr. 7, 2008) devotes several pages (36-43) of the Reporters’ Notes to Section 1.02 wrestling with that very distinction.
Here’s a shout-out to the reporters on that ALI project (Sam Issacharoff of NYU, Bob Klonoff of Lewis and Clark, Richard Nagareda of Vanderbilit, and Charles Silver of Texas): When the Chair of the MDL Panel speaks, the ALI should listen! We suggest citing this article (and this distinction) in the Reporters’ Notes. We’re not sure if you’ll agree with Judge Heyburn and the Panel’s dictum, but since they’ve spoken on the issue, you should acknowledge it.
Shoot — if it were up to us, we’d give a “hat tip” to this blog, too!
Sadly, we know that’s beneath the dignity of the scholars. (Even more sadly, they’re probably right on that score. We’ll have to settle for being flattered in very indirect ways.)