Models of Forum Shopping

Thoughts relevant to the Texas district courts.

There are a few different ways to think about the differences between judges, and about the related problem of forum shopping:

On one model, all judges are exactly the same. They all apply the law, which has uniquely right answers. It never matters who your judge is, because they will all apply the law, and all reach the right answer.

On a second model, there are two kinds of judges: fair, and unfair. Fair judges are basically the same. They all apply the law, which has uniquely right answers. But there are also unfair judges, who don't apply the law. So it matters whether you get a fair judge or an unfair judge.

On a third model, all judges are political. Judges are different to the extent that their politics are different. It matters who your judge is, because judges have different politics, and judges will apply their politics. Some people think this model is fair, and some think it is unfair.

On a fourth model, all judges are fair, and non-political, and apply the law, but they are also not exactly the same. The law is complicated enough that even two fair judges, both applying the law, might not always reach the same answer in every case. Neither judge is unfair, but the judges are different.

These models affect how we think about things like forum shopping and judge shopping. On the first model, of course, forum shopping is pointless, and people who complaint about it are delusional. On the second model, forum shopping is presumably bad to the extent that people with bad cases are picking unfair judges, and we should take the cases away from the unfair judges, or get rid of them entirely if we can. Etc.

But suppose we believe in something like the fourth model. Excessive forum shopping will systematically bias adjudication in favor of the plaintiffs, even though the judges are not biased. So it would be a mistake, a category error, to ask those opposed to forum shopping whether they think the judge is biased. Instead we should ask whether judges are different, and if so, whether we care if the plaintiff gets to pick the same one of the different judges over and over again. Maybe we do, maybe we don't, but that's the question. This is why I don't share Josh's reaction to the litigation over the federal district judges in Texas.

Comments

[Armchair Lawyer]

Now do the same analysis to groups of judges

[Purple Martin]

Why? Not snarky, just wondering what you think the extended question, but not the first, might surface?

[Dr. Ed 2]

Groupthink.

While I don't completely agree with the Wikipedia entry, it is close enough to explan the issue: https://en.wikipedia.org/wiki/Groupthink

And it's not malicious -- the Bay of Pigs is a good example -- as the only people who were involved in planning that fiasco were talking to were other people in the CIA, each wound up affirming the views of the others while just one person (whom they respected) saying "are you all insane" would have lead each to realize that, well, what they were proposing wasn't really all that good of an idea.

Which, of course, is an understatement...

[ragebot]

While I get the echo chamber idea I am not sure the Bay of Pigs is a good example. If air cover had been provided as was part of the plan it may well have worked out as planned. Kinda like in a trial where a star witness does not show up. Not saying the idea of a counter revolution was a good idea, just that if you plan one and then a key part of the plan is not followed through it is not likely the plan will work. As wiki notes "The plan, devised during Eisenhower's presidency, had required involvement of both air and naval forces. Without further air support, the invasion was being conducted with fewer forces than the CIA had deemed necessary."

Nixon campaigned on a harsh embargo against Cuba while Kennedy took a more militant approach and bashed both Nixon and Ike for being too soft on commies. In the beginning the counter revolutionaries had success but started to run out of ammunition and the ships off the coast found it too dangerous to land ammunition to support them due to Castro's air cover. Not much question US air cover could have eliminated any air cover the Cuban's could muster but when push came to shove Kennedy stopped ongoing air support. Again I am not trying to advance the idea US support of a counter revolution was a good idea, just that once it was planned cutting off air support doomed it.

[Dr. Ed 2]

The thing about the Nixon/Kennedy debate was that Nixon knew that there wasn't a missile gap, that the Soviets didn't have anywhere near as many ICBMs as people thought they did -- but that information was classified and he couldn't discuss it.

An interesting summary of the Bay of Pigs
https://www.airandspaceforces.com/article/airpower-at-the-bay-of-pigs/

[ragebot]

That link is much briefer than the wiki one but the last line is telling.

"A final perspective on the operation was offered by Fidel Castro. Asked why the invasion failed, he said, “They had no air support.”"

For what ever reasons Kennedy nixed any hope of a success (as little as that may have been) by inch by inch limiting the original plan and finally not allowing any air support. Truth be told once Castro went full commie there was resistance to his takeover. Huber Matos Benítez was a high ranking military officer who along with several of his fellow officers were imprisoned for dissing Castro once he turned commie; and they were not alone in this feeling. Kennedy was also mistaken in moving the initial landing from Trinidad which was a hotbed of resistance to the Bay of Pigs area which supported Castro much more.

Even with half hearted US military support a counter revolution had a chance of success; especially if the Mafia which lost big bucks when their vice operations in Cuba were curtailed by Castro had been involved.

[Armchair Lawyer]

At its heart, this is about forum shopping.

"Instead we should ask whether (groups of ) judges are different, and if so, whether we care if the plaintiff gets to pick the same (group of ) different judges over and over again. Maybe we do, maybe we don't, but that's the question."

If you're a liberal, you file in the Northern District of California if you possibly can. That's because every judge in that district was nominated by Obama or Biden. Filing elsewhere, you might get a different group of judges that trend differently.

[Sarcastr0]

Ain't no legal realism like lazy partisan legal realism!

[David Nieporent]

There are three senior judges in CAND that were Bush appointees. So you can still end up with one of them.

[Armchair Lawyer]

You're going to assign a case to a senior status judge like Ronald Whyte, who is inactive?

I think not. Perhaps Mr. Nieporent should review his facts again.

[Bored Lawyer]

For some time, there has been a curious dynamic in patent law. There is a whole genre of plaintiffs called Non-Practicing Entities, aka Trolls. They buy up unused patents and assert them against deep pockets, mostly big Silicon Valley players like Google.
They have been attracted to Texas -- at one point the Eastern District of Texas, more recently, the Western. Their counsel seem to think these venues are more pro-plaintiff.
There have been many mandamus orders out of the Federal Circuit forcing transfer elsewhere -- sometimes on the basis of wrong venue (there is a special federal venue statute for patent cases, which SCOTUS narrowed considerable a few years ago), sometimes based on convenience and Section 1404. The Federal Circuit probably grants more mandamus petitions than all other Circuits combined.
The Defendants almost uniformly prefer the Northern District of California, which includes Silicon Valley.
So, ironically, Texas, which is a conservative state, is preferred by patent plaintiffs and their counsel, while NDCal., considered a liberal place, is preferred by big business defendants.

[BravoCharlieDelta]

What do the data say about your four models?

[Kazinski]

I would go mostly with the 4th model, but there are cohorts of justices that when they apply the law they think first about what is fair/right and second about the law.

I include judges on both left and right who put the "right" result over black letter law. Right leaning judges may put respect for institutions and desire for order over the law, and left leaning judges may think societal "progress" and equity more important to strict adherence to the law.

[Jon S]

Other than 1, they are all right in some sense. The only thing we can really say about “all” judges is that they are all human beings. They are applying “the law” which is not math so there is not one clear answer to every question presented by “the law.”

There are 1000 federal judges roughly. I’d guess most try to be fair and apolitical but they are all human and are going to necessarily be unable to put all biases aside. Some will be better at that than others. They also all have different lived experiences which is going to affect how they look at questions. Some will be harder workers than others – some will be lazy and try to get by doing the least; some the opposite. Some will rely more on law clerks and some less., etc., etc., etc., etc. All this will lead to tons of variance.

Then, as I said, most will probably try to be apolitical, there will be some that don’t. There are 1000 of them so there are going to be a few bad apples. But even setting aside the bad apples, the way in which judges act when they try to be apolotical will very in many ways. One man's "apolitical" is another man's very political. I hear questions Justice Alito asks at oral argument and it sounds to me like a guy who hasn't gotten news from a non-Fox News or Fox News adjacent source for the last 20 years. Others may think I am completely wrong on that. Others may think that that is fully ok and indeed preferred. etc., etc., etc. The bottom line is Judges are all human and that the variance in all kinds of things is going to be very, well, human.

[Kleppe]

Imagine a model where all individuals are understood as precisely that, rather than merely members of groups with communal characteristics.

[Orin S. Kerr]

Good post. I’d also add, in response to Josh, that the expected answer when a judge deciding your case asks you in open court if you think he is biased is “no,” regardless of what you may actually think.

[Noscitur a sociis]

Prof. Kerr,

Did Prof. Blackman ever respond to your questions about his Judge Kacsmaryk post?

[David Nieporent]

Sure. Right after he corrected his false claim that DOJ didn’t argue improper venue.

[santamonica811]

I thought (in Josh’s earlier OP) that the trial court judge was doing clever lawyering himself. For the reason you noted: It’s almost unheard of to tell a judge to his face, “Yes, Bob, I think you are a biased judge.” (And, to the edge case where you do this, it’s done in a motion to recuse . . . the only times I’ve heard of a litigator saying this sort of thing to a judge’s face, are on fictional TV and movie courtroom dramas.

When I read Josh’s OP, and when I read about that judge trying (and succeeding!!!) to put the govt’s lawyer in a box, I was thinking that a better response from the lawyer might have been something along the lines of,

“Your honor, I make no assumption about the biases you may hold, or of any other judge. The problem is this case is that THE OTHER SIDE clearly thinks you are biased. In this case, biased in favor of them. That’s why they hand-picked you, in this location that has nothing to do with the facts of this particular case . . . because they are convinced that your honor is indeed biased, and will certainly rule in their favor. THAT is the problem the govt has with you hearing this case. Every single person in the public who looks at this case will look at [insert name of the party that cherry-picked this judge], will assume the legal process is unfair and tainted–and this helps destroy the public trust in this particular proceeding . . . and adds to the overall distrust of our legal system in general.”

(My own personal opinion: I think it is horrific when liberals or conservatives or rich or poor get to select a specific judge in a case. The ability to do this–even in a limited number of cases–is one of the very worst aspects of our judicial system. And shame on the locations, and the politicians, that allow for this, or even tacitly encourage it.)

[Commenter_XY]

That was interesting thought experiment. But how do you think the judge would react to your hypothetical argument?

[Lee Moore]

I appreciate the tactical advantages of lying to the judge about whether you think he’s biased, but I’m interested in whether there’s any ethics risk or criminal law risk involved.
So if a witness lies during testimony he faces a risk of perjury conviction. Do the lawyers not face any corresponding risk under the criminal law if the judge asks them a question in court and they lie?

And if not do they risk any ethics problem ?

There are certainly circumstances in which the fact of the lie could be proved - eg if you send a text to your wife saying “sorry can’t talk now I’m in court in 3 minutes before that biased lying hound Judge Bilbow “

[David Nieporent]

Do the lawyers not face any corresponding risk under the criminal law if the judge asks them a question in court and they lie?

Criminal law? Not really. But yes, of course lawyers face risk if they lie — about something material and factual. "I served these documents on my opponent on July 17." "I missed the conference because my grandfather had died earlier that day."¹ But not, "Oh, of course I think you can be fair."
​
​
¹People may remember this one.

[bernard11]

But not, “Oh, of course I think you can be fair.”

Worded like that, it's not even a lie. It's entirely possible to think the judge can be fair, while thinking he won't be in this particular case.

[Lee Moore]

Sure, but worded like Prof Kerr’s hypo, saying “No” if the Judge asks “Do you think I’m biased ?” is a lie if you do think he’s biased, and it may be possible to prove the lie. Which brings us to DNs requirements that the lie be material and factual. I guess it’s the factual bit that is a bit hazy for me. Say I’m on trial for murdering a coworker and I’m asked if I had a fractious relationship with him. I might say “No” and it might be proved by evidence of many angry spats that I was lying when I said “No”. That sounds like a factual statement. But maybe I answered “Well I always felt we had a good relationship” – does that make it a non factual statement of opinion, for which I can’t be done for perjury ?
Is this a rule for witnesses - always try to make your lies statements of opinion ?

[David Nieporent]

I mean, I think the rule for defendants is "don't testify." No, that would not be prosecutable for perjury, but of course if the prosecution had evidence of "many angry spats" they would use that evidence to impeach your claim that the relationship wasn't fractious, and you would be in worse trouble than a perjury prosecution.

[hoppy025]

I would say "Yes, absolutely" to force him to act in a way that would prove bias and then use that to move for his removal by the Circuit Court.

[Rev. Arthur L. Kirkland]

This circumstance has caused two Volokh Conspirators (so far) to publicize their criticisms of a Josh Blackman post.

Might Prof. Volokh join the discussion (after checking with Gov. DeSantis, of course)?

[BravoCharlieDelta]

You must preach at the Church of Perpetual Butthurt.

[Rev. Arthur L. Kirkland]

Only when I comment here, at the Church Of Perpetual Butthurt.

Carry on, clingers. Your whining is part of the soundtrack of American progress

[Rev. Arthur L. Kirkland]

Might Prof. Volokh join the discussion (after checking with Gov. DeSantis, of course)?

It appears Gov. DeSantis said no.

[John F. Carr]

There are some simple questions of law where the first model is close. Like "is there a federal constitutional right to abortion on demand in the second trimester?" If trial judges disagree the higher courts can step in.

But there are so many situations where the judge has discretion and knowingly or not puts his finger on the scale. The bias could be political or personal. It could be "the cop is always right". Some officers will testify in traffic court that their speed estimates are accurate to ±1 mph. They aren't. But if the trial judge buys it you can't successfully appeal a mistake of fact. (In the greater scheme of things, that precedent is somewhat counterbalanced by the Fourth Circuit decision saying if an officer doesn't remember how many inches or feet in a yard his speed estimate doesn't count. U.S. v. Sowards (4th Cir. 2012)).

[Bored Lawyer]

The four models fail to take into account that there are many issues in a case that are treated as matters of discretion by appellate courts. By definition, there is no right answer -- or, more accurately, there are multiple right answers -- to these issues in a case. Which means the judge can do anything he or she wants to, unless it is utterly insane. That is where judges can express their bias, if they are smart enough to hide it.
The same applies, to a lesser extent, to factual findings that may underlie rulings, which are again reviewed deferentially.
The models also fail to take into account another form of bias -- a judge decides he or she hates your client. I had that in a case, where the Magistrate Judge was a dumbbell, and the district judge was average, not terrible, but not the smartest, either. Truth to tell, the client was challenged in the honest business department. And we were his fifth of six set of counsel. So the term "piece of work" definitely applied.
But the rulings were clearly biased against him, and at times even blatantly ignored the applicable law.

[Sarcastr0]

I'm the only one to actually understand how to apply the law, which has uniquely right answers.

Thus, judges that agree with me are of the first model, and judges that don't are of the third.

[mydisplayname]

🙂

[QuantumBoxCat]

Westlaw Edge and Lexis+ both have extensive judge-level analytics, which I believe cost a pretty sizable sum to subscribe to. On the Westlaw Edge page there is a section that reads, "Advantages to data-driven insights: Evaluate your judge: See how a judge typically rules, subject matter expertise, time to rule, and authority they tend to cite."

On the Lexis+ page there is a section that read, "Select better venues by comparing courts & judges: Compare caseloads, experience across case types, timing to key milestones, and damages for up to four federal districts and judges at a time."

The Transactional Records Access Clearinghouse (TRAC) project, which contains judge-level criminal sentencing data for federal district judges, charges $155/month for 5 judge-level reports.

That there are subscription services offering information on how federal judges rule in cases, and that attorneys are willing to pay for this data, leads me to believe that it matters which judge presides over a case. You don't need to delve into the psychology of the judge and the causal mechanisms that lead to differences in rulings to appreciate the implications of the behavior-based data.

[santamonica811]

Many years ago, the "LA Times" newspaper did a lengthy article (or maybe a series of articles) about the Immigration Court judges who heard appeals. The Times was able to get all the data on those judges. Some judges overturned the initial ruling (ie, against the person claiming asylum) more than 90% of the time. Other judges ruled against the asylum-seeker more than 95% of the time. And this was after hearing hundreds of cases, over many years, so the data were pretty robust.

It was disheartening to read...that "justice" totally depended on which judge you were lucky or unlucky enough to get.

I don't know if you can extrapolate from Immigration Court to cases in Criminal or Civil courts. But I suspect, to a large extent, you can. Alas.

[Bored Lawyer]

Also try TheRobingRoom.com. Not data driven, more lawyers' impressions. But for many judges, they are consistent -- this one is pro-plaintiff or pro-business in civil cases, pro-Government or (rarely) pro-defendant in criminal cases.

[Lee Moore]

Prof Baude does not tell us in what respect these fair judges in category 4 differ from each other.
So for example Judge A may be a well known and unashamed textualist well known for his extreme nerdiness and lack of interest in the supposed purposes of statutes. While Judge B might always be trying to tease out some underlying purpose from between the words ( quite honestly) and may be less interested in following the text rigidly.
Or Judge A may be really smart, while Judge B is dumb as a rock. You may have a bad case but a superficially excellent argument that might fool Judge B but will never fly with Judge A.
In each case the judge is “fair”, but your chances with each are predictably different.

[Lee Moore]

If you can, under the law, file in District P with an 80% chance of getting a Judge that you think will be friendly ( whether because of bias, philosophy, known bugbears, whatever) and the alternative is to file in District Q with only a 30% chance - would you not be risking a malpractice complaint if you picked District Q ?

[David Nieporent]

Not really, no. It's not enough to show that the case's chances would've been better in P; to win a malpractice case against a lawyer, the erstwhile client generally has to show that he or she would have won the underlying case if not for the lawyer's alleged malpractice.

So he has to show that (a) a reasonable lawyer wouldn't have chosen Q, and (b) that he'd have prevailed if the lawyer had chosen P.

Not realistic, ordinarily.

[KRB]

True. But all that means is that the client cannot establish causation in his negligence action. It doesn't answer the question of whether the lawyer acted negligently (i.e., breached a duty) - that is, would a reasonable lawyer have filed in District Q? The client may lose because of an inability to establish causation, but don't we still need to know whether the lawyer breached a duty? (Perhaps this is analogous to the student-loan forgiveness issue: Do we care whether the Secretary of Education violated the law if no one has standing to challenge his actions?) I think in both cases, it is significant whether there has been a breach of legal duty irrespective of the outcome of a particular piece of litigation.

[Lee Moore]

Yes this is getting to the point I was trying to ask. Is a lawyer ethically obliged to judge shop ?

I know that if I found out that my lawyer had filed in a jurisdiction where he thought I had a poor chance of winning, when he could have filed in a jurisdiction where he thought I had a good chance of winning, then I wouldn’t be very amused.

This really gets to the point of - should we really be criticising lawyers for judge shopping, or are they just doing their job properly ?

[Ashland]

Why not allow each party one change of judge without the need to state a cause?

[Gorbag]

Why not let the defendant rather than the plaintiff choose the venue?

[Commenter_XY]

In these law professor posts, the one thing that I do not see: objective data.

How many single judge districts are there?
Where are they located?
Is the government making the same argument in other single judge districts in other states?
Are there even stats that track this? (should there be?)

The lack of data here is telling, to me.

[Noscitur a sociis]

What does it tell you?

[Commenter_XY]

It tells me that we need objective data.

[Sarcastr0]

What claims I’m his post are amenable to empirical evidence?

[Alpheus W Drinkwater]

For this particular post, I don't think Prof. Baude is making a claim that can be either defended or countered with objective data. He is pointing out a different way to think about the whole question of forum shopping.

[hoppy025]

Dems are the party of free shit.

[jdgalt1]

Your list of four models makes sense, but you skip over number 3 without addressing whether or not it's true. This suggests to me that it is.

This is not fair, but then again, objective persons don't exist, in or out of robes. So the best we can do is to write laws that can be read only one way, and have appeals judges who are willing to impose the rule of lenity whenever someone finds a second way that can't be dismissed as an absurdity.

[ReaderY]

I think Option 4 has to be split into 2 parts.

4a: Judges vary unpredictably, so you just don’t know how a judge will rule.

4b: Judges vary predictably. Their differences don’t make them undair. But nonetheless, knowing who the judge is gives you information about how the judge will rule.

There can be a mixture of 4a and 4b so that knowing the judge gives you some information but doesn’t always make the outcome completely predictable, maybe somewhat predictable sometimes on some things.

[tkamenick]

2, 3, and 4 aren't different models, though. They're all the same thing - judges are different. That doesn't get you very far.

[KenveeB]

I think that there are some judges who are just absolutely unfair, and then out of fair judges you will naturally have some variation in how they view things. Some answers will have an absolute right or wrong, but there's a reason we have the "abuse of discretion" standard of review. There are areas where reasonable minds can differ. That's not a bad thing. But I think that's exactly why forum shopping is a bad thing, because the only way that's properly balanced out is by having judges assigned randomly instead of being able to pick the ones you think will see it your way.

[OliverJacob12]

If air cover had been provided as was part of the plan it may well have worked out as planned. Kinda like in a trial where a star witness does not show up. Not saying the idea of a counter revolution was a good idea, just that if you plan one and then a key part of the plan is not followed through it is not likely the plan will work. As wiki notes “The plan, devised during Eisenhower’s presidency, had required involvement of both air and naval forces. Without further air support, the invasion was being conducted with fewer forces than the CIA had deemed necessary.”

Nixon campaigned on a harsh embargo against Cuba while Kennedy took a more militant approach and bashed both Nixon and Ike for being too soft on commies. In the beginning the counter revolutionaries had success but started to run out of ammunition and the ships off the coast found it too dangerous to land ammunition to support them due to Castro’s air cover. Not much question US air cover could have eliminated any air cover the Cuban’s could muster but when push came to shove Kennedy stopped ongoing air support. So for example Judge A may be a well known and unashamed textualist well known for his extreme nerdiness and lack of interest in the supposed purposes of statutes. While Judge B might always be trying to tease out some underlying purpose from between the words ( quite honestly) and may be less interested in following the text rigidly.
Or Judge A may be really smart, while Judge B is dumb as a rock. You may have a bad case but a superficially excellent argument that might fool Judge B but will never fly with Judge A. https://couriertrackingfinder.com/victory-liner-cargo-tracking/