The Volokh Conspiracy
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A Welcome Judicial Reform: Towards Random Case Assignment
I was delighted to see the Judicial Conference of the United States is acting to promote random case assignment in certain declaratory judgment and injunction cases. You can read the press release here.
It will be important to see the details, but as outlined, this policy change will ameliorate the consequences of forum-shopping in the federal courts, particularly when that forum-shopping allows plaintiffs to essentially select the judge who will hear the case. Allowing a plaintiff to select her own judge is inimical to the rule of law and brings disrepute on the judiciary.
To be clear, it is not the fault of the judge, who is open for business to anyone who files a complaint that meets the various jurisdictional and venue requirements. Similarly, it is hard to blame a plaintiff for trying to find the most advantageous place to sue. The duty of zealous advocacy may even require it. And even though there is an uneven distribution of single-judge divisions, I think the primary problem is not a partisan one–Republican state attorneys general seek national injunctions in friendly district courts, and Democratic state attorneys general seek national injunctions in friendly district courts, and I don't have to tell you where those are (the pattern holds in national injunction cases from the second half of the second Obama term to the present). Even so, the problem is greater in degree if a plaintiff is able to select a single judge.
As is often the case with structural problems, each actor can act rationally, by her own lights, but the collective action can go badly wrong. That's true here. The status quo is deeply messed up and I don't know why anyone would want to defend it. Good judicial practice should be preferred to partisan advantage every single time. It is a welcome development for the Judicial Conference to address this.
The argument is sometimes made that we should wait and let Congress fix the problem. But everyone is waiting for someone else to do something about it. It's good for the federal judiciary to act to get its own house in order.
Two final observations:
- There are a number of structural forces that have gotten us to this point, where the stakes are so high and the forum-shopping options are so high-powered. One is the expansion of state standing after Massachusetts v. EPA (though that seems to be ebbing after the Court's last term, as Will Baude and I explain here). The shift to abstract plaintiffs–coalitions of states–matters because there will be so many places to sue. Another is changes in preliminary injunction practice that make forum-shopping easier (more on that in a paper I'm writing). Still another, of course, is the rapid rise of the national injunction in the last ten years, a development that makes the stakes much higher and the forum selection more salient.
- As outlined in the statement from the Judicial Conference, the policy will apply to "civil actions that seek to bar or mandate state or federal actions, 'whether by declaratory judgment and/or any form of injunctive relief.'" To me that seems exactly right. The declaratory judgment and the injunction are the two relevant remedies. It is noteworthy that there is no mention of vacatur. That is correct: vacatur is not a remedy (this is true under the text and structure of the APA, and it is true in the law of remedies for reasons I could elaborate at great length). If I am reading the Judicial Conference's statement correctly, the reference to "any form of injunctive relief" is meant to be broad enough that if a court insists on acting like vacatur is a remedy, and acting like it is an injunction, then the court's action is covered, but all without committing the doctrinal error of actually calling vacatur a remedy.
Bottom line: this is a welcome and overdue development. Three cheers for the Judicial Conference.
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I feel much the same way, and I expect in time higher courts will appreciate a reduction in the number of applications for emergency relief.
What a refreshing change from Blackman’s nonsense below.
Agreed.
I wonder what prompted this? Was there a threat of litigation on this practice?
Couldn’t this be in good faith, seeing the judicial churn we’ve been seeing over the past half decade or so?
It’s mostly a Republican judiciary and the benefactors of forum shopping have mostly been Republican causes. Which makes me think they’re being pushed.
Even if you want to be cynical, as noted, there are plenty of divisions (and even districts) where you can be pretty confident of getting a judge who’s going to be unusually receptive to left wing arguments. At some point (maybe even some point very soon!) there’s going to be another Republican president, so…
“I wonder what prompted this? Was there a threat of litigation on this practice?”
Is that what it takes for you to justify a change in practice? A lawsuit?
[sarcasm]What could the members of the Judicial Conference possibly have been thinking?[/sarcasm]
You could be more straightforward by issuing the statement you wish to make, instead of phrasing it as what I presume to be a disingenuous rhetorical question that does not actually reflect what would be an obvious lack of regard for ethical behavior.
This has been an issue in two areas of practice: patent litigation, and nationwide injunction litigation, where someone challenges a national policy.
The nation injunction thing I understand.
What is happening in patent law?
A few judges in small divisions in Texas decided to set up a patent practice. It is understood that these venues are more plaintiff friendly. At one point the E.D.Tex. was popular; more recently the W.D.Tex. (To some extent, the motivation is that patent litigation draws high-spending national lawyers to the local economy.)
Patent cases brought by small patent enforcers (aka Patent Trolls) with a national import, like suing big Silicon Valley defendants, were brought in Texas. The Federal Circuit has issued numerous mandamus orders requiring transfer to other venues, usually the N.D.Cal.
You can read more here: https://www.courthousenews.com/the-rise-and-fall-of-a-texas-patent-court/
BL, I started writing my comment below before yours appeared, went away for a while, then came back and finished without checking for updates in the meantime.
My involvement was mostly in the FOSS movement, and the numerous bottom-feeding patent trolls sending mass mailings of thousands of identical settle or I’ll sue letters to smaller business and tech companies heavily dependent on open-source applications. Occasionally worked with the Electronic Frontier Foundation on some of those.
But you’re right, it was the big splashy cases you mention that finally got the attention of Congress and ended the gravy train in Marshall.
For decades, the Eastern District of Texas (in the small town of Marshall) heard nearly half of patent suits filed nationwide, mostly because it had developed a reputation of being particularly accommodating to patent trolls.
The legal term for patent troll is non-practicing entity, for their technique of researching old, obscure, overly broad patents to find something that might let them send letters threatening lawsuits to thousands tech companies or businesses using common, broadly-implemented tech products. Many ended up settling with the troll to avoid the cost of litigation in Marshall, Texas.
A lot of that ended with legislation passed by congress in 2017, but some of it still goes on. Search on the title of this from Courthouse News Service for a little history and an example of how hard it is to stop (In 2018 the newly appointed single federal district judge in the Waco courthouse (Western District of Texas) figured out he way to get around the new laws and try to do essentially the same thing):
No need to do this for Hawaii immigration cases, urgent need when it is Biden policies at risk.
If you’re going to what about, can you at least try to find something that’s factually on point? The Hawaiian immigration case did not involve a pattern in which a single judge was specifically sought, over and over again in multiple cases, to achieve desired results.
Also the judges being shopped to are legitimately cranks who are bad at their job. If you are a judge and you use blog posts to resolve factual issues in the case….you are extremely bad at judging and law. And yet, that’s what Kacsmaryk does. And that’s why extremist lawyers go to him: they don’t expect him to be good at his job.
Except its not just that. This practice is turning all sorts of long-standing law on its head by going to extremist cranks.
Now we need a solution for sue and settle. But I don’t see the Judicial council having the needed authority.
They will never squash that. Notice how you never see the Lefty “Sacred Democracy” types shine a light on that evil.
Refreshing reading this after wading through Prof. Blackman’s hissy fit. Factual, sober, and succinct.
I don’t know if Prof. Bray read that typical JoshPost, but he certainly answered it:
“The status quo is deeply messed up and I don’t know why anyone would want to defend it.” is an arrow aimed precisely at Prof. Blackman.
The policy will require case assignments to be determined by rolling regulation SCOTUS dice.
Alternatively – case assignments will be made by machine systems using randomization algorithms. The machines are manufactured by the Octan Voting Machines Company. https://www.youtube.com/watch?v=wVvWnndh-N0
Wait for Congress to act you could wait forever. The current system is a boon to Congree. Congress refuses to act, the President acts by EO and the courts rule on the EO. Congress never has to take messy votes that could be counted against them at elections.
That’s also why Congress created “mandatory spending” and created, self-funded law-making independent Executive Branch agencies.
I’d love to see the Lefty Sacred Democracy types rail against these very undemocratic things.
“self-funded law-making independent Executive Branch agencies”
There is no such thing as you described. No agency can make laws, they can only make regulations to implement laws passed by Congress and signed by the President. I agree that like EOs the regulation created often allow Congress to skirt its responsibility. Congress fails to act, people demand action from overseeing agency, new regulations are created and court either affirm or reject the new regulation. Congress is left with clean hands.
Actually, congress is left with the same amount of dirt on their hands as when they started. They just varnish it, polish it, and call it a patina.
I like the idea of such a policy but all I can see so far is a press release (or, more precisely, an online article describing the policy). But there is no link to the actual policy. And nobody has released the policy. And the details matter!
So I am not inclined to celebrate until I can read the policy and understand the mechanism for implementation/enforcement.
That is a lucid, intelligent, well-thought-out position.
Thank you.