Stephen Vladeck Replies to Judge Reed O’Connor on Forum Selection and Judge-Shopping

A few days ago, my co-blogger Josh Blackman posted some very interesting remarks about forum selection and judge-shopping from Judge Reed O’Connor (NDTX).  I was interested to know, though, what the counterargument might look like.  In the spirit of furthering that debate, I am pleased to pass on this reply to Judge O’Connor from Professor Stephen Vladeck.  The remainder of the post is Professor Vladeck’s reply.

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My sincere thanks to Professor Orin Kerr for inviting me to respond to Judge O’Connor’s speech in this guest post. If nothing else, the more that we’re publicly discussing and debating the virtues and vices of judge-shopping, the better. To that end, I’m also grateful to Judge O’Connor—not just for publicly addressing the critiques, but for allowing his remarks to be shared more broadly.

In trying to make the case for why judge-shopping should bother all of us, it might be useful to start with a context in which the cases are (and, thus, the entire debate is) less ideologically charged—patent litigation. Starting in 2019, Judge Alan Albright—a former patent litigator confirmed to the federal bench in 2018—began undertaking a series of efforts to attract patent litigators from all over the country to bring their patent cases to Waco, Texas. As Professors Jonas Anderson and Paul Gugliuzza documented, Albright adopted a series of procedural and case-management rules that gave special treatment to patent cases. And given his own experience prior to taking the bench, he could also guarantee that litigants would have a judge with an unusual amount of subject-matter expertise to preside over their claims. How could he guarantee that? Because, at that time, 100% of new civil cases filed in the Waco Division of the Western District of Texas were assigned to him. And it worked. By 2020, 23% of new patent cases in the country were being filed in the 23rd largest city in Texas.

Albright’s efforts provoked a sharp and high-level bipartisan response. Those efforts culminated in November 2021, when Senators Patrick Leahy (D-Vt.) and Thom Tillis (R-N.C.) wrote to Chief Justice Roberts that this behavior “creates an appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal administration of the law.” Roberts echoed the point six weeks later—writing in his 2021 Year-End Report that “the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues,” even as “the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities.” In his words, “Reconciling these values is important to public confidence in the courts.” (The March 2024 Judicial Conference policy statement provoking Judge O’Connor’s speech was the culmination of the process that Senators Leahy and Tillis had asked for.)

The Western District got the message. In July 2022, the Western District changed its case assignment rules to provide for the random assignment of all patent cases filed in Waco—so that litigants would have less than a 10% chance of drawing Judge Albright. Not surprisingly, the number of new patent suits filed in Waco has dropped precipitously.

I mention all of this to illustrate two points: First, when the subject-matter of the judge-shopping wasn’t ideologically charged, folks didn’t seem to have trouble separating out the Waco docket’s terrible optics for public confidence in the federal courts, on the one hand, from the perfectly ethical behavior of the lawyers who filed their cases in Waco and the judge who made it known that he was receptive to them, on the other. Both things can be—and in that case, were—true.

Second, so far as I know, no one ever accused the long list of “commentators, so-called watchdogs, and even elected officials” who criticized what was happening in Waco of being engaged in “efforts to undermine public support for the judiciary,” or of “increasingly teach[ing] students to presume malicious intention on the part of judges with whom they disagree.” To the contrary, the concern was that the judge-shopping that Judge Albright was inviting was itself responsible for “undermin[ing] public support for the judiciary,” even if it came from the best of motives and a good-faith belief that everyone would be better off with a patent law expert handling more patent cases with patent-friendly procedural rules.

The quotes in the last paragraph, in case it wasn’t clear, are from Judge O’Connor’s speech—in which he was quite critical of those, like me, who have been more generally critical of judge-shopping. And insofar as the quoted language is directed at people like me, I find the sentiments rather unfortunate—for at least three reasons.

First, they seem rather oblivious to the pervasiveness of the judge-shopping that’s occurring in Texas courts these days. To take one example, just yesterday, Texas filed at least its 47th different lawsuit in Texas district courts challenging Biden administration policies. Of those 47, zero have been filed where the Texas government is actually located (i.e., Austin). 24, including yesterday’s, have been filed in single-judge divisions; another six were filed in divisions where Texas had a 95% chance of drawing a specific judge. And when asked why it keeps filing in these geographically obscure (and unrelated) parts of the state, Texas has publicly conceded that it has nothing to do with that particular forum’s connection to the litigation, but rather is entirely because it wants those judges to hear those cases. If it was problematic for patent litigants to be able to steer almost 25% of nationwide patent litigation to a single judge in Waco, it seems comparably problematic (if not worse) for Texas to be able to steer a significant percentage of nationwide litigation challenging new federal policies to hand-picked judges in other single-judge divisions in Texas. (I’ve written elsewhere about why, in my view, this kind of judge-shopping is different in both degree and kind from forum-shopping; some degree of the latter is inevitable in a system with permissive venue and jurisdictional rules.)

Second, they suggest that, so long as judges are acting impartially, there can be nothing wrong with judge-shopping. Again, it seems to me that the patent example provides powerful evidence to the contrary. More generally, my own view is that judge-shopping is a problem even if the judges are behaving in a manner consistent with the highest standards of the profession—because of the appearance that it creates. The issue isn’t whether the judges are in fact predisposed toward the plaintiffs who have carefully selected them; it’s the visual, to the public at large, that the plaintiffs are carefully selecting them. Indeed, I took this to be the gist of Professor Sam Bray’s similar reaction on this site to the Judicial Conference’s policy statement.

Finally, whether intentionally or not, Judge O’Connor’s remarks are doing exactly what he’s complaining critics are doing—assuming bad faith on the part of those they are criticizing (and failing to provide evidence to support such an assumption). My friend and former Dean Ward Farnsworth, writing after (and about) Bush v. Gore, put the point quite elegantly: “those who accuse the majority of having partisan motives underestimate the good faith of the justices; but those who acquit the Court of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.” The same is true here. Judge-shopping is a problem not because of the bad faith (or “partisan motives”) of the judges, but because of the terrible message it sends to the public at large about the neutrality of the federal courts when the same types of cases are steered to the same small cohort of judges again and again and again—when the litigants’ “partisan behavior” makes the courts look like they can be so easily manipulated to serve partisan ends, even if the judges on the receiving end don’t feel that way.

This is presumably why, for example, Judge Jeff Brown, who sits in the single-judge Galveston Division of the Southern District of Texas, quietly adopted a new local rule last year that requires plaintiffs to explain the geographical connection of their lawsuit not just to the Southern District, but to Galveston, specifically, and raises the possibility that suits with no such connection will be transferred to a different forum. And it’s why it ought not to provoke such a strong reaction from Judge Brown’s colleagues when folks like me suggest the possibility of comparable reforms.

Instead, Judge O’Connor’s reaction is to criticize the Judicial Conference for “responding to external political criticism,” and to cheer those who have pushed back to ensure that “heavier access-to-justice burdens aren’t imposed on citizens in our district based solely on where they live.” But with all due respect, this rhetoric is knocking down a strawman. None of the proposed reforms of which I’m aware, including those suggested by the Judicial Conference, would make it any harder for a litigant in Wichita Falls (where Judge O’Connor hears 100% of new civil cases) to file in Wichita Falls. It would just eliminate the possibility that, by filing in Wichita Falls, the litigant would be guaranteed to have their case assigned to a specific judge. (One of my favorites was when Oklahoma filed a lawsuit against the federal Bureau of Prisons in Wichita Falls and defended its choice of venue on the ground that Wichita Falls is “approximately halfway between the BOP Defendants living in the Northern District of Texas and the State of Oklahoma Plaintiffs residing in Oklahoma City, Oklahoma.” Talk about a stretch…)

Even the most aggressive reforms to limit judge-shopping would, at most, require a bit more travel by judges—something that is already the norm across wide swaths of the country that don’t have single-judge divisions. Increased judicial travel is, obviously, not without economic and other costs. But that’s a rather different critique than one grounded in non-existent unfairness to litigants.

The same can be said about concerns that judge-shopping reforms would be politically asymmetrical. 10 of the 11 active judges in the Northern District of Texas, and 15 of the 16 judges currently hearing new civil cases, were appointed by Republican presidents. Random assignment throughout the district would thus reduce the odds of a case being assigned to a Republican appointee only marginally; the real impact would be in dramatically reducing the ability of plaintiffs to pick a specific one. If the upside is increased public confidence that the federal courts aren’t being manipulated to transparently inappropriate ends, that seems like a remarkably small price to pay.