Professor Robert Pushaw, "The Unconstitutional Assertion of Inherent Powers in Multidistrict Litigations" -- Brigham Young University Law Review

Professor Robert J. Pushaw's article, "The Unconstitutional Assertion of Inherent Powers in Multidistrict Litigations," (SSRN) is published in the Brigham Young University Law Review (2023). The article examines the constitutional basis of the federal courts’ independent exercise of “inherent powers” that Congress has not specifically authorized. The article is co-written with professor Charles Silver of the University of Texas at Austin School of Law.

Abstract of "The Unconstitutional Assertion of Inherent Powers in Multidistrict Litigations"

This Article examines the constitutional basis of the federal courts’ independent exercise of “inherent powers” (IPs) that Congress has not specifically authorized. Our analysis illuminates the grave constitutional problems raised by the freewheeling assertion of IPs in multi-district litigations (MDLs), which comprise over half of all pending federal cases.

The Supreme Court has rhetorically acknowledged that the Constitution allows resort to IPs only when doing so is absolutely necessary to enable Article III courts to exercise their “judicial power,” but has then sustained virtually all exercises of IP, whether essential or not. The Court’s excessive deference has emboldened trial judges to claim an ever-expanding array of IPs. The Constitution, however, requires a sharp distinction between two kinds of IPs.

First, “indispensable” IPs are those without which courts could not properly exercise their “judicial power”—rendering a final judgment after interpreting the law and applying it to the facts. Such adjudication may require judges to fill gaps in written procedural rules; manage their cases reasonably and efficiently; maintain their authority by punishing litigation misconduct; and ensure that attorneys are competent and ethical. Article I authorizes Congress to facilitate, but not impair, such indispensable IPs.

Second, federal judges cannot legitimately claim IPs that are merely “beneficial” (i.e., helpful or convenient), but that do not affect their ability to function as independent courts. Rather, Article I empowers Congress alone to grant such IPs, regulate them, or withhold them. Moreover, courts can never assert IPs in a way that violates parties’ due process rights.

The proposed constitutional framework would clarify all IPs, but would be especially useful as applied to MDLs. In these complex cases, district courts have asserted an astonishing variety of IPs to regulate parties and their attorneys. Yet only one IP invoked in MDLs—the power to appoint managerial lawyers to handle communications and coordinate litigation activities—is proper because it is indispensable and leaves parties’ substantive and procedural rights unchanged.

Other IPs asserted in MDLs should be foresworn because they are beneficial powers that Congress has not authorized. Examples include the practice of forcing parties’ retained lawyers to compensate court-appointed attorneys, caps on retained lawyers’ fees, sua sponte enforcement of state bar rules that govern matters unrelated to adjudication, and judicial review of settlements. Yet other IPs exceed even Congress’s powers because, by asserting them, judges deny parties due process of law. Judicial appointments of lead attorneys who displace parties’ retained lawyers fall into this category by saddling plaintiffs with virtual representation (VR), which the Supreme Court has forbidden. Worse, because the success of MDL as a means of eliminating repetition and conserving resources depends upon the use of VR, the procedure itself is constitutionally infirm.