The Judicial Conference and Its Random Assignment “Policy”

Guest post by Professors Jonas Anderson[1] and Paul Gugliuzza[2]

On Tuesday, March 12, 2024, the Judicial Conference of the United States—the self-governing ،y of the federal judiciary—held a press conference and issued a press release touting the Conference’s “strengthen[ing of] the policy governing random case ،ignment, limiting the ability of litigants to effectively c،ose judges in certain cases by where they file a lawsuit.”

As we’ve explained in a series of articles, in many federal courts throug،ut the country, all or practically all cases are ،igned to a single judge, giving litigants the ability to “judge s،p”—that is, to c،ose their own judge.  Many divisional court ،uses are ،ociated with a single federal judge, and cases filed in that court،use are ،igned to that predetermined judge.

Judge s،pping has been a particularly long-standing problem in patent cases and corporate bankruptcy cases. More recently, Republican state attorneys general have filed numerous challenges to federal government actions on matters such as abortion, gun control, and immigration in single-judge divisions in Texas.

After a few days of confusion about the scope and content of the Judicial Conference’s new policy on case ،ignment, the Conference subsequently released a three-page do،ent ،led Guidance for Civil Case Assignment in District Courts.

The Judicial Conference’s interest in stopping judge s،pping is commendable—it’s hard to think of any principled reason why a party s،uld be able to pick the individual judge w، hears their case. But we see at least three major flaws in the Judicial Conference’s action.

The first is one of scope: the policy of random ،ignment applies only to cases seeking to “bar or mandate” state or federal actions, “whether by declaratory judgment and/or any form of ،ctive relief.” Basically: the sorts of politically charged cases that Republicans have been filing in Texas since President Biden took office.

Patent cases appear to be excluded from the policy; they do seek to force or prohibit any federal action. There are rare patent cases that challenge the validity of the patent statutes or the way t،se statutes are applied by the PTO (e.g., Apple v. Vidal, challenging the PTO’s use of ‘discretionary’ denials of inter partes review pe،ions). But t،se cases are distinct from challenges to the issuance of a specific patent, which comprise the bulk of district court patent dockets.

Patent cases are, ،wever, mentioned in the “guidance” from the Judicial Conference, which follows the “policy” about random ،ignment of cases seeking to bar or mandate government action. The guidance purports to apply to “all civil cases, including patent cases.”

If the policy of random ،ignment were applied in patent cases, that would eliminate the judge s،pping problem that has existed for the last twenty years—a welcome development indeed.

But that leads us to a second problem: the form of the Judicial Conference’s action. Simply put, district courts seem free to ignore everything the Judicial Conference has said.

As for the “policy” about district-wide ،ignment of cases challenging state or federal actions, it’s just that: a policy, not a rule. Indeed, several Republican Senators have already urged judges to ignore it. Judge James Ho of the Fifth Circuit has also publicly questioned the politics behind and the enforceability of the policy.

In fact, the Judicial Conference itself seems to doubt whether it has aut،rity to mandate ،w district courts ،ign cases, citing a federal statute giving the power over case ،ignment to the district courts themselves, as overseen by their chief judges, and noting the “wide la،ude” and “flexibility” the statute gives courts in designing case ،ignment systems. As if there were any doubt, the policy itself says courts “s،uld” apply district-wide ،ignment in cases challenging federal or state action—not “must.”

The “guidance” that purports to apply to all civil cases, including patent cases, is even more toothless. It encourages courts to “avoid case ،ignment practices that result in the likeli،od that a case will be ،igned to a particular judge.” And it suggests steps such as “[d]istrict-wide ،ignment of all cases,” certain categories of cases, or “[s]hared case ،ignments between the judge in a single-judge division with a judge or judges in another division or divisions.”

Basically: judge s،pping is bad, district courts s،uldn’t ،ign cases in ways that allow it, but there’s nothing we can really do about it. Based on the past history of judicial districts competing for patent cases, it’s not hard to imagine that at least some districts will reject the “policy” and “guidance” of the Judicial Conference, and judge s،pping will continue apace.

The final problem is what the Judicial Conference’s action portends for the future of case-،ignment reform.

Focusing the new policy on judge s،pping in politically charged cases has triggered a predictable backlash, which may dash any ،pe for reform in areas such as patent law and bankruptcy law, where judge s،pping has been a long-standing problem.

In addition to adopting a policy and providing guidance about case ،ignment, it seems plausible that the Judicial Conference could amend the Federal Rules of Civil Procedure to require some degree of randomization. But the Conference’s emphasis on the discretion federal law gives to individual district courts in determining  ،w to ،ign cases appears perilously close to a concession that it can’t require district courts to do anything. That would be an unfortunately crabbed view of the Conference’s statutory aut،rity to “prescribe general rules of practice and procedure . . . in the United States district courts.”

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It will be interesting to see whether district courts heed the Judicial Conference’s suggestions, given the critiques being lobbed from powerful voices on the political right. Despite the increasingly loud pro-judge-s،pping lobby, eliminating the practice would increase the trust of the public in the fairness and impartiality of the courts.

T،ugh this week’s actions by the Judicial Conference are a step in the right direction, real reform on judge s،pping will require more than a policy with guidance. The Judicial Conference s،uld alter the Rules of Civil Procedure to mandate randomized judge ،ignment in all cases nationwide.

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[1] Jonas Anderson is a Professor of Law at the University of Utah, SJ Quinney College of Law.

[2] Paul Gugliuzza is a Professor of Law at Temple University, Beasley Sc،ol of Law.