Single-judge divisions in federal courts have inadvertently given rise to judge-shopping, when plaintiffs strategically file suit in a division based on favorability of its judge.
In at least 81 divisions nationwide, only one or two judges preside over the division’s cases, creating the opportunity for plaintiffs to pre-select a judge.
Judge-shopping emerged in the Waco Division of the US District Court for the Western District of Texas, where the arrival of pro-patent holder Judge Alan Albright attracted an influx of patent cases practically overnight.
Albright was a patent litigator before he was nominated to the bench in 2018. He christened his new position by embarking on a publicity campaign. He promoted Waco as a venue with a patent-savvy judge and promised local rules designed to reduce time to trial, which is preferential to plaintiffs for driving settlement.
Albright’s campaigning was unconventional, and as Waco’s sole judge, he was guaranteed assignment to any cases filed in the division. Albright was also likely capitalizing on the fact that plaintiffs aren’t limited to a particular division of a district.
Staying true to his word, Albright promptly enacted new local rules and announced a policy of denying defendants’ requests to stay,pending validity challenges of asserted patents at the US Patent Office. As Albright began administering cases, he demonstrated reluctance to grant defendants’ motions for summary judgment and rejected requests to transfer outside the Waco Division.
Albright’s efforts to entice patent plaintiffs proved successful. Within a week of his judgeship, 10 patent lawsuits were filed in the Waco Division. This represented a 200% increase over the previous two years, in which the division received a total of five patent lawsuits. By 2021, Albright was hearing 25% of the country’s patent cases.
Following outcry from disgruntled defendants, two senators criticized the extreme concentration of patent litigation in the Waco Division. The Western District’s chief judge ordered that patent cases in Waco be randomly distributed among the district’s 12 judges.
Yet, judge-shopping isn’t limited to patent litigation. Plaintiffs challenging federal policies have been accused of the behavior, as well. Parties suing the Biden administration have demonstrated a preference for single-judge divisions in the Northern District of Texas and the Western District of Louisiana, the domain of Trump-appointed judges known to strike-down Democratic initiatives.
Meanwhile, parties challenging Republican policies have sought out one-judge divisions in the Southern District of New York and the Northern District of California, where the judges have more left-leaning track records.
Needless to say, judge-shopping gives plaintiffs an unfair advantage. Venue rules exist to protect defendants from the hardship of litigating in inconvenient forums. Yet forcing defendants to litigate before judges strategically chosen by plaintiffs is an even greater hardship. Although defendants can request transfers, judges have exhibited reluctance to grant such motions.
And the consequences of judge-shopping reach beyond the parties to a case. Judicial manipulation yields faulty precedent, which binds future litigants and residents of the jurisdiction.
The Constitution provides for a judiciary that’s impartial and insulated from political pressure. Judge-shopping allows judges to act as politicians, vocalizing their proclivities and rubber stamping the outcome requested by plaintiffs. Co-opting of the judicial system is antithetical to separation of powers and threatens to undermine public confidence.
The Department of Justice has echoed concerns about judge-shopping. Last year, it filed a motion in a Northern District of Texas case advocating for its transfer, given that neither the plaintiff nor the defendant resided in the division.
In a letter sent to the Advisory Committee on Civil Rules last month, the DOJ warned of unfairness in single-judge divisions and called for a federal rule requiring random assignment of cases within districts.
But, adopting a new federal rule requires a lengthy approval process. Rather, districts should take it upon themselves to adopt local rules requiring redistribution of cases filed in divisions with one or two judges.
The rules can eliminate the ability to choose a division, instead randomly distributing cases across divisions. Alternatively, the rules can prescribe a fraction of cases filed in a single-judge division to be swapped with judges in other divisions.
Random distribution of patent cases filed in the Waco Division has shown promising results, with a decline in the number of filings heralding more equitable conditions for litigants. By extending this approach across other one or two-judge divisions, a fairer system can be achieved.
Of course, any reform should protect the legitimate interests of parties. Districts are subdivided to ensure that litigants don’t have to travel far. The amended rules can provide the opportunity for parties to object to division assignment for hardship and random reassignment if proven.
Additionally, the rules may make an exception when both sides of a case consent to a division.
It’s unclear why some judges court litigants. In the case of Albright, it’s might be due to intellectual interest in patent law. In the case of politically-oriented judges, it may stem from normative beliefs about what the law should be. But all judges have reputations and a duty to appear impartial, and whether they attract plaintiffs shouldn’t be their concern.
Predictable assignments in single-judge divisions are at the root of the gamesmanship and districts are in the best position to take corrective action.
Originally published in Bloomberg Law.
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