Less Is More: Issue Presumption in Mass Tort MDLs

In mass tort multidistrict litigation (MDL), existing scaling-up devices have failed to generate significant efficiency gains. This essay suggests a novel device: issue presumption. Where courts possess the greater power to apply issue preclusion, courts may instead apply issue presumption to shift the burden of persuasion against the losing party in subsequent cases. By scaling up through this softer, more flexible approach, MDL courts can capture lost efficiency gains.