The Case for Caution on Reacting to the Judicial Conference Press Release on Forum-Shopping

We should wait until we know what (if anything) is happening.

My co-bloggers Josh Blackman and Sam Bray have offered very different reactions to the Judicial Conference's press release about a new policy on forum-shopping. Josh is strongly critical on a long list of procedural and substantive grounds,  while Sam welcomes the development.

My own view is that we need to wait, as we have no idea yet what the Judicial Conference has in mind.

In particular, we don't know who wrote the press release or whether it accurately describes whatever the Judicial Conference has in mind.   It's entirely possible that the "policy" is merely a recommendation that circuits and districts are free to ignore, as suggested by an unnamed judge who wrote in to David French and Sarah Isgur on the latest episode of Advisory Opinions.  It's also possible that whatever was approved by the Judicial Conference is so soft a suggestion that it doesn't even rise to a policy, which might explain why the text of any policy isn't known.  We just don't know yet.

Perhaps there's a story here, and if so we can react when we have more details. But I think it may be prudent to wait.

Comments

[The Margrave of Azilia]

But if you wait for the facts to come out, how can you deliver instant hot takes?

[Mr. Bumble]

"But I think it may be prudent to wait."
You beat me to it.

[Stepped Reckoner]

Oh, the irony.

[Magister]

Hot takes contribute to global warming. Orin Kerr's cool take is environmentally friendly.

[John F. Carr]

Since the Judicial Council may lack the authority to force changes, the press release may be more important than the policy itself. Government officials often do things that won't help because the action makes concerned citizens understand that somebody in power cares about them.

[Martinned2]

Alternatively the Judicial Conference might consist of people who are individually able to push for a policy to be turned into law at the Judicial Council level, at least if it's a policy that is supported by a broad consensus at the Judicial Conference level.

For reference:

The Chief Justice of the United States is the presiding officer of the Judicial Conference. Membership is comprised of the chief judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a district judge from each regional judicial circuit.

[Stephen Lathrop]

Does that guarantee a seat on the Judicial Conference to each judge sitting in a single-judge district?

[David Nieporent]

No. It's one district judge from each circuit, of which there are only 13 in the country — not one from each district, of which there's 94, or each division, of which there are hundreds.

[Dilan Esper]

If it were one per division, Kacsmaryk would have to be on it!

[Stephen Lathrop]

Another point in favor of caution, for Blackman in particular. If it's your goal to take advantage of some mis-structured feature of the judicial system, and someone else says, "Maybe that needs fixing," the last thing you want to do is publish world-wide how pissed off you are. The reform impulse might blow over, but your Streisand-effect yowling will be out there forever. Everyone who bumps into your stuff will wonder, "Hasn't that been fixed yet?"

[Magister]

Blackman's main purpose is to promote Blackman, and the high volume of self-promotion is going to bury the bad takes. If the policy turns out such that Blackman isn't inclined to rail against it, he'll take credit for fixing it. And he mostly goes off on things that others are already talking about, like Clarence Thomas's corruption.

[Paul Alan Levy]

This was precisely my reaction. Until we see a document rather than a blog post, it is just empty words

[Bruce Boyden]

Caution is so 20th-century.

[QuantumBoxCat]

Minutes from the Judicial Conference Advisory Committee on Civil Rules, October 17, 2023. New Matters: Random Case Assignment. (Bray is cited)

https://www.uscourts.gov/sites/default/files/2023-10_civil_rules_committee_meeting_agenda_book_11-6_final_0.pdf#page=301

Minutes from the Judicial Conference Committee on Rules of Practice and Procedure, January 4, 2024. Report to the Standing Committee from the Advisory Committee on Civil Rules, December 8, 2023: "Random assignment of cases"

https://www.uscourts.gov/sites/default/files/2024-01_agenda_book_for_standing_committee_meeting_final_0.pdf#page=311

[Please, Daivd, Seek Help]

Orin, why do you think your co-author keeps writing about how the mere act of issuing the press release two days before the policy is itself a catastrophe of epic proportions, the worst bungle the United States government has seen in a decade, and other superlatives? Can you think of any particular reason why releasing a press release two days before the policy previewed by the press release is a crime against humanity? The argument seems so unserious that it makes me struggle to take the more substantive arguments by the same author seriously.