Guest post by Professors Jonas Anderson[1] and Paul Gugliuzza[2]
On Tuesday, March 12, 2024, the Judicial Conference of the United States—the self-governing body of the federal judiciary—held a press conference and issued a press release touting the Conference’s “strengthen[ing of] the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit.”
As we’ve explained in a series of articles, in many federal courts throughout the country, all or practically all cases are assigned to a single judge, giving litigants the ability to “judge shop”—that is, to choose their own judge. Many divisional court houses are associated with a single federal judge, and cases filed in that courthouse are assigned to that predetermined judge.
Judge shopping has been a particularly long-standing problem in patent cases and corporate bankruptcy cases. More recently, Republican state attorneys general have filed numerous challenges to federal government actions on matters such as abortion, gun control, and immigration in single-judge divisions in Texas.
After a few days of confusion about the scope and content of the Judicial Conference’s new policy on case assignment, the Conference subsequently released a three-page document titled Guidance for Civil Case Assignment in District Courts.
The Judicial Conference’s interest in stopping judge shopping is commendable—it’s hard to think of any principled reason why a party should be able to pick the individual judge who hears their case. But we see at least three major flaws in the Judicial Conference’s action.
The first is one of scope: the policy of random assignment applies only to cases seeking to “bar or mandate” state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief.” Basically: the sorts of politically charged cases that Republicans have been filing in Texas since President Biden took office.
Patent cases appear to be excluded from the policy; they do seek to force or prohibit any federal action. There are rare patent cases that challenge the validity of the patent statutes or the way those statutes are applied by the PTO (e.g., Apple v. Vidal, challenging the PTO’s use of ‘discretionary’ denials of inter partes review petitions). But those cases are distinct from challenges to the issuance of a specific patent, which comprise the bulk of district court patent dockets.
Patent cases are, however, mentioned in the “guidance” from the Judicial Conference, which follows the “policy” about random assignment of cases seeking to bar or mandate government action. The guidance purports to apply to “all civil cases, including patent cases.”
If the policy of random assignment were applied in patent cases, that would eliminate the judge shopping problem that has existed for the last twenty years—a welcome development indeed.
But that leads us to a second problem: the form of the Judicial Conference’s action. Simply put, district courts seem free to ignore everything the Judicial Conference has said.
As for the “policy” about district-wide assignment of cases challenging state or federal actions, it’s just that: a policy, not a rule. Indeed, several Republican Senators have already urged judges to ignore it. Judge James Ho of the Fifth Circuit has also publicly questioned the politics behind and the enforceability of the policy.
In fact, the Judicial Conference itself seems to doubt whether it has authority to mandate how district courts assign cases, citing a federal statute giving the power over case assignment to the district courts themselves, as overseen by their chief judges, and noting the “wide latitude” and “flexibility” the statute gives courts in designing case assignment systems. As if there were any doubt, the policy itself says courts “should” apply district-wide assignment in cases challenging federal or state action—not “must.”
The “guidance” that purports to apply to all civil cases, including patent cases, is even more toothless. It encourages courts to “avoid case assignment practices that result in the likelihood that a case will be assigned to a particular judge.” And it suggests steps such as “[d]istrict-wide assignment of all cases,” certain categories of cases, or “[s]hared case assignments between the judge in a single-judge division with a judge or judges in another division or divisions.”
Basically: judge shopping is bad, district courts shouldn’t assign cases in ways that allow it, but there’s nothing we can really do about it. Based on the past history of judicial districts competing for patent cases, it’s not hard to imagine that at least some districts will reject the “policy” and “guidance” of the Judicial Conference, and judge shopping will continue apace.
The final problem is what the Judicial Conference’s action portends for the future of case-assignment reform.
Focusing the new policy on judge shopping in politically charged cases has triggered a predictable backlash, which may dash any hope for reform in areas such as patent law and bankruptcy law, where judge shopping has been a long-standing problem.
In addition to adopting a policy and providing guidance about case assignment, it seems plausible that the Judicial Conference could amend the Federal Rules of Civil Procedure to require some degree of randomization. But the Conference’s emphasis on the discretion federal law gives to individual district courts in determining how to assign cases appears perilously close to a concession that it can’t require district courts to do anything. That would be an unfortunately crabbed view of the Conference’s statutory authority to “prescribe general rules of practice and procedure . . . in the United States district courts.”
* * *
It will be interesting to see whether district courts heed the Judicial Conference’s suggestions, given the critiques being lobbed from powerful voices on the political right. Despite the increasingly loud pro-judge-shopping lobby, eliminating the practice would increase the trust of the public in the fairness and impartiality of the courts.
Though this week’s actions by the Judicial Conference are a step in the right direction, real reform on judge shopping will require more than a policy with guidance. The Judicial Conference should alter the Rules of Civil Procedure to mandate randomized judge assignment in all cases nationwide.
* * *
[1] Jonas Anderson is a Professor of Law at the University of Utah, SJ Quinney College of Law.
[2] Paul Gugliuzza is a Professor of Law at Temple University, Beasley School of Law.
“..Following blowback from Senate Republicans and some conservative judges, judicial policymakers later clarified that the policy was discretionary, leaving it to each district court to decide how to implement it.
In his letter, Godbey, [the current chief judge for the NDTX which has some one-judge Texas divisions of particular concern for issuing nation-wide injunctions] an appointee of Republican former President George W. Bush, said the judges in his district met on Wednesday. “The consensus was not to make any change to our case assignment process at this time,” he said. ”
[This leaves the Sup. Ct. to deal with “Texas Judicial Science” injunctions if the 5th Cir. does not reverse them.]
So, the Supreme Court – and NOT the Court of Appeals, Federal Circuit.
What are the odds that the CAFC
a) will take note of this, or
b) respect this?
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April 1, 2024 at 8:50 am
So, the Supreme Court – and NOT the Court of Appeals, Federal Circuit.
What are the odds that the CAFC
a) will take note of this, or
b) respect this?
The statute you linked to doesn’t give the Conference authority to issue rules of procedure, as you say. It gives that authority to the Supreme Court. And other statutes require certain processes before that can happen, such as notice and comment. You messed that up.
“it’s hard to think of any principled reason why a party should be able to pick the individual judge who hears their case.”
. . . and yet it’s perfectly O.K. for serial Big Tech infringers to be able to drag inventors and patent owners off to the innovation h.e.l.l. hole, patent-killing field that is NDCal.
What is the judicial conference doing about that?
+1
“ What is the judicial conference doing about that?”
The drugs you are on didn’t suggest any possibilities?
There is a big difference between “forum shopping” and “judge shopping.” There are about two dozen Article III judges across three divisions in NDCal (including 14 active judges and a number of senior judges), and patent cases are randomly assigned across the district no matter the division in which they’re filed. It is thus impossible to pick your judge in NDCal in a patent case, the way one can pick their judge by filing in a division with a single judge and no district-wide random assignment.
“patent cases are randomly assigned across the district no matter the division in which they’re filed”
. . . and yet, when all the ND judges are anti-patent and pro-Big Tech, it matters not how many of ’em there are.
A killing field is still a killing field is still a killing field.
“all the ND judges are anti-patent and pro-Big Tech”
Derpity derp derpderp dip derp derp….
Malcolm likely has no C1ue that his use of “derp” is a tell against his own postings.
Say “La Vee.”
“a killing field is still a killing field”
Except there’s no field and there is no killing. There’s just you, a miserable whining infant complaining on a blog and advertising your cluelessness and your sad life to everyone.
Malcolm,
I see that you are doing what you like to do: projecting.
I wonder how the authors feel about districts where all the judges and juries will favor one side over the other. How do we address that?
They focus on protestations from the political right, but seem to ignore the impossibility of someone who is not a dem getting a fair trial in DC or NYC.
“ the impossibility of someone who is not a dem getting a fair trial in DC or NYC.”
LOL
You are one heck of a rightwing dips—t. Shouldn’t you be suiting up in your armor to battle the invading hordes of thousands of lunatic asylum escapees at our border? They are poisoning our blood, you know.
You are a foreigner, correct?
Look at the demographics. DC is over 97% democrat.
“DC is over 97% democrat”
So?
In the 2020 election, Biden got 92% of the vote. What shot do you think Trump has to a fair trial there?
“What shot do you think Trump has to a fair trial in DC”
100%
More importantly, Mango will get the trial he deserves. Personally I’m looking forward to watching him crumple in front of a bullet-riddled brick wall but I’ll gladly just watch him go bankrupt and rot in jail. That would be more than fair to him (but unfair to most other people who he has stolen from, r a p e d, or li e d to.
You really cannot figure out your own biases, can you?
How sad.
“Fair” to him means getting the outcome TP wants.
You don’t know that one of Interpol’s 10 most wanted was just found near San Antonio, Texas, do you?
Gee, I wonder how he got in…
“one of Interpol’s 10 most wanted was just found near San Antonio, Texas”
So. What.
So what? He is also on Colombia’s most wanted. How did he get in? Private jet?
“ He is also on Colombia’s most wanted”
That must be so very interesting to a person with a small miserable life like yours. Say, what do you think about this ra pist fraud who is going bankrupt but wants to be Prezzie Wezzie? Seems like your kind of man.
He was not charged or convicted with rape. The civil trial did not find rape either. Stop with your defamation.
But, stop deflecting when you cannot answer. Rapists are not usually on the most-wanted list. It is murder.
False equivalent.
The definition of “r a p e” according to the New York Penal Code is narrower than the common definition of the term. And according to the common definition, your luvvaboy definitely is a r a p i s t.
Also your “defamation” comment is hilarious. How low are you going to go here?
Yet another post showing that Malcolm is the Trump of this blog.
Way too funny.
You would say that, Billy, because you really do seem to love this con man r a p i s t.
Yet again, Malcolm, you are wrong.
That’s a serious case of OMB-TDS coupled with your one-bucket syndrome that you have going on.
Believe it: there is a spectrum of views out there.
“there is a spectrum of views out there”
No doubt because there is a spectrum of ig n o rance and evil out there. So explain to everyone, Billy, why you go out of your way repeatedly to defend this r a pi st con artist fas cist knob when there is a whole other way “spectrum” of behavior you could engage in? Recognize also that Orange Julius Caesar is just a symptom of a bigger problem (and you are also a symptom).
CRIMINY
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March 23, 2024 at 9:54 am
March 23, 2024 at 9:53 am
This is nothing more than your one-bucketing.
De-constructing your own OMB-TDS is not going out of the way and defending anyone – it is merely explicating how your world-view is so very wr0ng.
Lol. Where was Trump tried? NY. Your a riot.
But, what is the common definition? Is it what Joe did to Tara Reade? Unlike Jean, Tara remembers the when and the where.
Oops. ^ You’re.
Patent cases appear to be excluded from the policy…
I do not think that this is correct. The memo provides that “[d]istrict courts should apply district-wide assignment to… civil actions seeking to… mandate nationwide enforcement of a federal law,… whether by declaratory judgment and/or any form of injunctive relief.” The typical injunction in a patent case is a nationwide injunction, and when injunctions are made in patent cases, they are made to give effect to Title 35—a federal law. Therefore, on its face, the memo applies in patent cases where the patentee prays for an injunction in the complaint.
“35–a”
Drum making things up again.
The answer is to use computer judges. What are we waiting for? The AI revolution is here and computers are creating the best art ever made and acing the hardest law exams ever created. I am not a crank.
Your beginning statements are quite disassociated from your final one.
There’s no actual dissociation if you understand the context and if you are aware of the existence of sarcasm.
Keep trying!
Look in the mirror.
I know, once you get over the gruesomeness, then recognize your tendencies of projection.
MM doesn’t know that Washington state is said to be pioneering not needing to take the bar to be a lawyer (so as to be diverse and inclusive in the legal profession).
“Washington state is said to be pioneering not needing to take the bar”
Get your hot wingnert news right here, folks! So hot.
6 – links?
Try to make them NOT the “wingnert” variety.
I am not familiar with this source, but this is what I could find:
link to spokesman.com
Billy on his hands and knees for 6, hunting for that “devastating” truffle that isn’t. What a team they make!
Meh – hardly hunting – it was a quick search.
Unlike you, I prefer to have information before me prior to launching into any putdowns.
That’s likely why mine are so much better than yours.
Speaking of (projecting) being on one’s hands and knees, have you figured out what your script is in regards to the Israel/Hamas fiasco?
I see that you still cannot bring yourself to provide a cogent answer on this particular topic (even as you freely expound on other things political).
You do realize that this just highlights your duplicity, eh?
“it’s hard to think of any principled reason why a party should be able to pick the individual judge who hears their case.”
Your onus is misdirected.
It should be a system-side, “every judge follows strict recusal” methodology that encourages anyone and everyone to be able to select a judge of their choice.
If that were the focus, then forum shopping from ALL sides simply would cease to be an issue, and we all would have a direct feedback of how the variances in application of law would be most desired (and that would be a good thing).