At last, a fed crackdown on judge shopping
The Judicial Conference of the United States — the policymaking body governing federal courts — has taken an important step toward creating a more fair and impartial justice system.
Neutral arbiters are necessary to achieve fairness in many situations. Sports teams don’t assign referees for their own games, and students applying to colleges can’t select who reviews their qualifications. For too long, however, some plaintiffs have been able to “judge shop,” effectively choosing the judge who will oversee their case.
Judge shopping allows for an appearance of unfairness, which erodes public trust in the courts, and creates circumstances where judges and plaintiffs can engage in inappropriate conduct. In its new guidance, the Judicial Conference lays out policies to promote random case assignment and crack down on judge shopping. It is now up to district courts across the country to implement randomization and, as the Conference recommends, formalize case assignment practices with public rules and orders as opposed to private plans and policies. This transparency will help bolster public trust and reinforce equal justice.
The United States has 94 federal district courts, each of which determines case assignment procedures locally. A common policy has been for districts to assign a given case to a judge who sits in the division where the case is filed. This practice seems straightforward, but it creates opportunities for gamesmanship in single-judge divisions. Sophisticated plaintiffs identify single-judge divisions that retain all of their cases and select judges from this pool whom they believe will be sympathetic to their cause. In other words, plaintiffs judge shop to tilt the scales of justice in their favor.
In 2021, I sent a letter with my former Senate Judiciary Committee colleague, Senator Thom Tillis, to U.S. Supreme Court Chief Justice John Roberts, expressing concerns about forum shopping in patent lawsuits. In the letter, we called attention to the District Court for the Western District of Texas’s Waco Division. In 2016 and 2017, the Waco Division averaged one patent case every year, but by 2021, the one-judge district was on track to oversee about 25% of all pending patent cases in the entire nation.
The spike in patent cases was not a coincidence. A judge, confirmed in 2018, had been openly recruiting patent infringement plaintiffs to file lawsuits in his court and was routinely denying defendants’ motions to transfer the cases. As a result, Waco became the go-to venue for nonpracticing entities, or “patent trolls,” whose business models revolve around aggressive, and oftentimes frivolous, patent infringement litigation.
The situation became such a black eye on the federal judiciary that Chief Justice Roberts highlighted it as one of his most pressing concerns in the 2021 Year-End Report on the Federal Judiciary. In July 2022, the Chief Judge of the Western District of Texas issued an order specifically about patent cases in Waco, mandating the random distribution of lawsuits filed in that division.
Patent lawsuits were clearly on the Conference’s mind when developing the new case assignment guidance. The March 15 memorandum goes out of its way to note that the recommendations apply to patent cases, a welcome clarification that will help avoid misunderstandings as districts implement new randomization measures. The menu of case assignment practices that the Conference suggests to “successfully avoid the likelihood that a case will be assigned to a particular judge” includes options like the districtwide assignment of all cases; the district-wide assignment of certain cases based on the type of case and other factors; and having shared assignments in single-judge districts so that cases are spread across multiple divisions.
Any of these options would help prevent the type of imbalance that occurred in Waco from being replicated elsewhere. Still, the Conference acknowledges “the statutory authority and discretion that district courts have with respect to case assignment.” It will be up to the district courts themselves to follow through.
The Conference’s secretary, Judge Robert J. Conrad, Jr. advocated for the organization’s new guidance, saying that randomizing case assignment “deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.” It is hard to argue with his assessment.
Top patent litigation venues have become skewed, spurring policymaker and public concern. The Conference’s policy recommendations will help rebalance the judicial system and address this issue, but only if district courts universally and transparently adopt them. I look forward to seeing random case assignments put into practice, ending the judge shopping that has become too common in our courts.
Patrick Leahy was U.S. senator from Vermont from 1975 to 2023, former Chair of the Senate Judiciary Committee, and Chair of the Judiciary Subcommittee on Intellectual Property in the 117th Congress.