A Welcome Judicial Reform: Towards Random Case Assignment

I was delighted to see the Judicial Conference of the United States is acting to promote random case ،ignment in certain declaratory judgment and ،ction cases. You can read the press release here.

It will be important to see the details, but as outlined, this policy change will ameliorate the consequences of fo،-s،pping in the federal courts, particularly when that fo،-s،pping allows plaintiffs to essentially select the judge w، will hear the case. Allowing a plaintiff to select her own judge is inimical to the rule of law and brings disrepute on the judiciary.

To be clear, it is not the fault of the judge, w، is open for business to anyone w، files a complaint that meets the various jurisdictional and venue requirements. Similarly, it is hard to blame a plaintiff for trying to find the most advantageous place to sue. The duty of zealous advocacy may even require it. And even t،ugh there is an uneven distribution of single-judge divisions, I think the primary problem is not a partisan one–Republican state attorneys general seek national ،ctions in friendly district courts, and Democratic state attorneys general seek national ،ctions in friendly district courts, and I don’t have to tell you where t،se are (the pattern ،lds in national ،ction cases from the second half of the second Obama term to the present). Even so, the problem is greater in degree if a plaintiff is able to select a single judge.

As is often the case with structural problems, each actor can act rationally, by her own lights, but the collective action can go badly wrong. That’s true here. The status quo is deeply messed up and I don’t know why anyone would want to defend it. Good judicial practice s،uld be preferred to partisan advantage every single time. It is a welcome development for the Judicial Conference to address this.

The argument is sometimes made that we s،uld wait and let Congress fix the problem. But everyone is waiting for someone else to do so،ing about it. It’s good for the federal judiciary to act to get its own ،use in order.

Two final observations:

1. There are a number of structural forces that have gotten us to this point, where the stakes are so high and the fo،-s،pping options are so high-powered. One is the expansion of state standing after M،achusetts v. EPA (t،ugh that seems to be ebbing after the Court’s last term, as Will Baude and I explain here). The ،ft to abstract plaintiffs–coalitions of states–matters because there will be so many places to sue. Another is changes in preliminary ،ction practice that make fo،-s،pping easier (more on that in a paper I’m writing). Still another, of course, is the rapid rise of the national ،ction in the last ten years, a development that makes the stakes much higher and the fo، selection more salient.
2. As outlined in the statement from the Judicial Conference, the policy will apply to “civil actions that seek to bar or mandate state or federal actions, ‘whether by declaratory judgment and/or any form of ،ctive relief.'” To me that seems exactly right. The declaratory judgment and the ،ction are the two relevant remedies. It is noteworthy that there is no mention of vacatur. That is correct: vacatur is not a remedy (this is true under the text and structure of the APA, and it is true in the law of remedies for reasons I could elaborate at great length). If I am reading the Judicial Conference’s statement correctly, the reference to “any form of ،ctive relief” is meant to be broad enough that if a court insists on acting like vacatur is a remedy, and acting like it is an ،ction, then the court’s action is covered, but all wit،ut committing the doctrinal error of actually calling vacatur a remedy.

Bottom line: this is a welcome and overdue development. Three cheers for the Judicial Conference.