If you’ve been paying attention to the legal system recently, you’ve probably heard the term “forum shopping.” It’s usually invoked to criticize plaintiffs who file cases in places that don’t have a strong connection to the dispute: say, a lawsuit filed in Philadelphia by a railroad worker who was exposed to asbestos in Ohio and Virginia.
But defendants forum shop too. By raising objections under technical doctrines of jurisdiction and venue, they can try to move cases to courts where they’ll have a better chance of winning. Think: Apple or Google seeking to move a patent infringement lawsuit filed in the Texas cities of Waco and Marshall, where, combined, over a third of the nation’s patent cases are filed, to their home base of Northern California.
Hold on. Did we just say that a third of all patent cases are filed in two small cities in Texas? We did, and it’s true.
Why do patent owners forum shop into those Texas federal courts? Because, as we’ve explained in a series of law review articles, the rules for assigning cases there allow plaintiffs to judge shop. Specifically, all cases filed in Waco were, before a recent change, assigned to a single judge—Alan Albright. Ditto for Marshall, where 90 percent of cases went to Judge Rodney Gilstrap.
Judges like Albright and Gilstrap have advertised to anyone who will listen that they want to bring patent cases to their courtrooms. (In contrast to forum shopping, judicial efforts to attract cases might be thought of as forum selling.) To bring cases in, the judges slant procedures and rulings to blatantly favor patent owners.
Many of the infringement lawsuits filed in Texas are weak on the merits; if the Texas courts weren’t so favorable for patent owners, many of the suits probably wouldn’t be filed at all. And the patent owners filing cases in Texas are primarily nonpracticing entities (pejoratively, “patent trolls”)—entities that don’t make anything and exist only to assert patents.
Bankruptcy is another area in which judge shopping has caused problems: courts with predictable case assignments in Delaware, Texas, and New York have openly appealed to what legal scholar Lynn LoPucki calls “case placers”—the executives and lawyers of the bankrupt company who hope the judge will reward them with a sweetheart compensation deal and high professional fees.
More recently, Republican state attorneys general and far-right advocacy groups have been shopping for judges in cases challenging the actions of the Biden administration. High-profile lawsuits about the Food and Drug Administration’s approval of the abortion drug mifepristone, the rescission of the Trump administration’s “Remain in Mexico” immigration policy, protections for transgender workers, and many more have all been filed in federal court in Amarillo, Texas, because a single judge hears nearly every case filed there.
That judge is Matthew Kacsmaryk. Before his appointment by former President Donald Trump, Kacsmaryk worked for a right-wing organization, the First Liberty Institute, that purports to help protect religious freedom.
Judge shopping has caused mayhem in all of these cases in all of these courts.
Fortunately, last week, the Judicial Conference of the United States (a group of judges that oversees the operation of the federal courts) issued a press release and guidance document touting the conference’s “strengthen[ing of] the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit.”
Under the “strengthened policy,” certain cases will now be randomly assigned among all the judges of a district, not simply the subset of judges (or a single judge) sitting in the specific place the case was filed.
But there are two crucial problems with the policy.
First, the randomization policy applies only to “civil actions that seek to bar or mandate state or federal actions.” That is, the politically charged cases that are landing before Kacsmaryk—not patent cases and certainly not bankruptcy cases.
Second, the policy is just that: a policy, not a rule.
In fact, a group of Republican senators, including Minority Leader Mitch McConnell, has written a letter to district court judges suggesting that they ignore the policy. That seems like a real possibility, particularly in courts that have benefited from judge shopping and forum selling, such as Kacsmaryk’s district, the Northern District of Texas, in which 10 of its 11 active judges were appointed by Republican presidents (and six were appointed by Trump).
The Judicial Conference itself seems to doubt whether it has the authority to mandate how district courts assign cases, citing a federal statute giving the power of case assignment to the district courts themselves and noting the “wide latitude” and “flexibility” courts have in designing case assignment systems. Indeed, Judge James Ho of the U.S. Court of Appeals for the 5th Circuit (the court that hears appeals arising from cases in Texas, Louisiana, and Mississippi) has suggested that the conference’s policy conflicts with that federal statute and, like McConnell and other Republicans, has urged judges to ignore the policy.
The exclusion of patent cases from the policy is also odd and disappointing. After all, the issue of judge shopping was first brought to the Judicial Conference’s attention in a letter, written by Sens. Patrick Leahy and Thom Tillis, specifically about patent cases. (That letter relied heavily on our scholarship identifying and criticizing the judge shopping phenomenon.)
The Judicial Conference’s guidance document does encourage district courts to “avoid case assignment practices that result in the likelihood that a case will be assigned to a particular judge” in all civil cases, including patent cases. But again, that guidance isn’t binding.
Basically, the Judicial Conference seems to be saying: Judge shopping is bad, district courts shouldn’t assign cases in ways that allow it, but there’s nothing we can really do about it. That’s an unfortunately toothless approach to a serious problem. It’s also a crabbed view of the group’s statutory authority to “prescribe general rules of practice and procedure … in the United States district courts.”
All that said, it’s encouraging that the conference has judge shopping in its sights. It’s possible future reform will come. And it should. The federal courts are facing a crisis of legitimacy, largely because of the radical political agenda pursued by Trump-appointed judges from the district courts all the way up to the Supreme Court. Ending judge shopping would restore at least some semblance of neutrality to the court system.
