Recovering the Social Value of Jurisdictional Redundancy

I just posted a piece that I wrote for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation on bepress (download here) and SSRN (download here).   The piece should appear on both these links shortly.  Here is the abstract:

This essay, written for the Tulane Law Review Symposium onthe Problem of Multidistrict Litigation, argues that the focus ofproceduralists on centralization as a solution to the problems posed by modernlitigation is misplaced. It is time torefocus on the social value of the multiple centers of authority thatjurisdictional redundancy permits. Thisessay presents the case for multi-centered litigation with particular focus onthe potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is thatjurisdictional redundancy is imbedded in our federalist system and ourpreference for adversarial adjudication. The normative claim is that judges and scholars should take moreseriously the social benefits of pluralism offered by jurisdictionalredundancy. In furtherance of this goal,I suggest three factors that judges and policy-makers consider in determiningthe level of centralization appropriate in a given case: (i) the extent andnature of underlying substantive disagreement, (ii) the costs of inconsistency,and (iii) the role of political power in the litigation. The question judges, legislators and scholarsshould ask is not only how much pluralism our system of adjudication can tolerate,but also how much uniformity we should expect in a pluralist society.

ADL