Previously posted on SSRN.

Abstract

A reply to Lynn A. Baker & Andrew Bradt, Anecdotes in the Search for Truth About Multidistrict Litigation, 107 Cornell Law Review Online 249 (2023).

Perceptions of Justice in Multi-district Litigation: Voices from the Crowd presents the results of a study that no one wanted us to do—or help us to do. Professors Lynn Baker and Andrew Bradt would prefer to dismiss as “anecdote” our two-year effort to find and gain the trust of multi-district litigation (MDL) plaintiffs whose attorneys told them not to discuss their case with anyone, including us.

There are decades worth of procedural justice studies demonstrating that people want their attorneys to be involved with them and their case, expedient resolution and adversarial process before a neutral decision maker, and control over the process through opportunities to participate, present evidence, and tell their story. These components form the cornerstone of fair process everywhere: in the workplace, during police encounters, in alternative dispute resolution, and, of course, in court. But these hallmark features are often lacking in MDL, which focuses on efficiency.

Nevertheless, Baker and Bradt take issue with the primary finding that plaintiffs in MDL may not be happy about the process. In so doing, they assume that typical MDL plaintiffs are satisfied. But they provide no evidence to support their assumption. And they don’t want their assumption tested because, as they say, the results could be fodder for the defense bar.

Academics should not avoid asking questions or studying issues because they fear how their results might be used. Unlike our critics, neither Dr. Williams nor I consult for plaintiffs or defendants (or anyone else for that matter). If small sample size and selection bias are truly Baker and Bradt’s concerns, both could be addressed by extending the study with more data. But nowhere in their essay do they suggest that. Instead, they would prefer we not ask the question in the first place.

We agree that “scholars are in the knowledge-creation business.” Creating knowledge means asking hard questions even if—especially if—others would rather you not.

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