The Volokh Conspiracy
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Can Judges Coordinate Parallel Litigation?
And would judges have to notify the parties about this coordination?
Professor Bert Huang published a new article in the Texas Law Review, title Coordinating Injunctions. He proposes a solution to the problem of federal judges issuing conflicting injunctions:
When faced with a possible clash of injunctions, each district judge should issue or stay her intended relief in accordance with the real-world outcome she thinks the majority of district judges would choose. Following such a shared convention, judges with diverse views will have a better chance of avoiding a clash because their estimates of the majority view are probably more similar than their individual views. And a stay would not signify abandoning a judge's own views (which are still fully aired in her written opinion) but would instead reflect an awareness that other judges' views may differ—akin to the existing practice of a stay pending appeal
I wrote about this issue in the context of the DACA litigation: what would have happened if two federal judges issued contradictory injunctions against the federal government. Fortunately, we did not see dueling cosmic injunctions.
Here, I raise a related issue: is it proper for federal judges in district courts to coordinate parallel litigation? I'll use a familiar example. In early 2017, plaintiffs in three federal courts filed suits based on the Constitution's Foreign Emoluments Clause. The parties were different, and they presented different theories of standing. But the merits questions were very similar. Indeed, two of the three cases had overlapping counsel.
Would it have been proper for the three district judges to coordinate the litigation--especially given that these complaints presented questions of first impression. Let's assume that the judges had such a conference, and they agreed on a single resolution of what the phrase "emolument" means in the Foreign Emoluments Clause. Could the troika have agreed to let one judge write a precedential opinion first, which the others two judge would subsequently rely on as persuasive precedent. This approach would save judicial resources. If all three judges agree on a merits question, why should each of them reinvent the wheel? But is this method fair to the parties? If the judges wanted to pursue this option, would they have to provide notice to the parties? Could the parties object to this coordination? These communications are not, strictly speaking, ex parte communications. And I'm certain that judges routinely talk to each other about routine matters. (Think of Baby Judges School). But does the analysis change for a merits analysis?
I don't have strong thoughts here. I welcome emails, especially from judges, who have given this issue some thought. I'll be happy to write a follow-up post with responses from judges, without attribution.
