ABA Finally Speaks Up About The Problem Of Judge Shopping
from the stop-judge-shopping-now dept
We’ve been writing about the problem of “judge shopping” for years in a variety of contexts. While there used to be concerns about “forum shopping,” in which plaintiffs would seek out specific courts that were deemed more favorable (such as the Eastern District of Texas for patent troll cases), it got more ridiculous in recent years with deliberate judge shopping, where plaintiffs would file cases in districts with only one judge, knowing they’d get who they wanted.
We’ve seen concerns about judge shopping in different types of cases from the infamous Judge Alan Albright in Waco, Texas, to cases where the DOJ started to direct warrant requests away from judges who actually reviewed them with a critical eye. We’ve also seen it happening in a bunch of political cases lately, including the ridiculous Missouri v. Biden case. The Albright situation was so egregious, what with the judge literally going on a roadshow tour pitching companies on filing in his district, that Supreme Court Justice John Roberts had to weigh in on the issue.
But, still, no one’s really fixed it.
Thankfully, even the American Bar Association is fed up. At its latest annual meeting, the ABA officially adopted a resolution saying that the issue needs to be fixed and fixed soon:
Federal judges should be assigned to cases randomly to prevent the appearance of litigants picking districts and judges offering the most likely path to victory, the House of Delegates agreed on Monday at the ABA Annual Meeting in Denver.
Coming after accusations of “judge shopping” in high-profile, politically charged cases, Resolution 521, sponsored by the Litigation Section, aims to “help support the legitimacy of our federal courts and the public’s confidence in them,” according to the report accompanying the resolution.
“It’s about the issue of forum-shopping by picking judges, in particular, judge shopping by picking divisions where there is only one judge sitting in that division,” said Laurence Pulgram, a delegate from California representing the Litigation Section, in introducing the resolution. “You go to division A, you get Judge X. That’s the way it goes.”
As supporters of this resolution correctly note, the current system significantly undermines belief in the legitimacy of the judiciary. And the judiciary has already taken plenty of hits lately. But this is a big one. As the article linked above notes:
As of 2018, 55 of the 94 federal district courts are divided by geography and “at least 35 of the 55 divisions appear to have either a single district judge or two district judges assigned to each,” according to the report accompanying the resolution.
The situation with Judge Albright was egregious, but it’s happening all over:
But judge shopping has not only occurred in patent cases. An amicus brief in the application of United States v. Texas and Louisiana detailed 19 instances where Texas filed challenges to federal law in federal courts in 2021 and 2022. Of those, 18 were assigned to a district judge appointed by a president of the opposite political party from the administration that promoted the policy or law being challenged; in addition, 15 of the 18 cases were filed in either a single-judge division or a two-judge division.
While the ABA’s resolution is welcome in calling more attention to this, none of that matters if the problem itself isn’t fixed. And that means either the federal courts or Congress (or both) need to figure out a way to fix things. And I have little hope that that will actually happen.
Filed Under: aba, alan albright, courts, forum shopping, judge shopping, jurisdiction shopping
Comments on “ABA Finally Speaks Up About The Problem Of Judge Shopping”
This should be the heading
“18 were assigned to a district judge appointed by a president of the opposite political party from the administration that promoted the policy or law being challenged”
What ever happened to the idea that laws are created for the interaction of more then 1 person.
Making laws for 1 person or type, is NOT a good law. Its persecution.
and
Makign laws for the individual is going as far as Morality..
And that Should be Their Own choice. And only when it infringes on others Should it be a problem.
B'
Dont you need another B’ in ABA? it would sound better.
Obviously, yes, but how would you fix it? Unless someone can snap their fingers and conjure new judges from thin air, the reality is there are a limited number of them, so they have to be spread around, which means that necessarily some jurisdictions are going to have just one judge because they only have one judge worth of case work.
Trying to stop people from setting up shell companies anywhere they want is a game of legal whack-a-mole, never a game you want to play with people trying to avoid something. Incentives matter, and as long as the reward is greater than the cost to achieve it people will do it. Just IMO, instead of trying to stop people from finding a court as silly as their lawsuit the rewards of those lawsuits need to be curtailed to the point that they aren’t worth filing here, there, or anywhere (not even in a box, or with a fox).
Re:
Randomly shuffle cases between adjacent districts.
Re: Re:
If the districts are 20 miles apart, that might be workable.
Problem is, some of the districts in question are a lot farther than 20 miles apart. (And… the small courts are going to naturally be where there aren’t a lot of cases… ie further away from other courts.)
Some how it feels like punishing judges who betray the very group of people they should be serving is not on the table? Not even a very stern “NO, bad!“?
Re:
What particular betrayal are you talking about? Adjudging a case in a way you don’t like?
You’re aware of Appellate courts, aren’t you?
And in the alternative, what are you asking the judges in question to do, and for what particular reasons? Be specific, because it is law we are talking about. And account for why the current laws and rules do not fit your actions and reasons.
Sorry, but if you’re going demand change, at least do so having thought through the details and implications. “Something must be done, this is something, we’ll do that” is a poor plan.
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I don’t know whether it applies to this issue, but it is important to know that the ABA has been captured by woke ideology. They have suggested passing rules that would censure lawyers for using politically incorrect language, supporting DEI, and reducing the use of the bar exam. Anything that involves that involves “the ABA speaks” must be carefully examined for ideological bias before being accepted as “this is what lawyers think”.
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Fuck off Herman
The underlying, and much more acute, problem is that there aren’t enough Federal judges. The consequence is that it takes far too long and, therefore, far too much money to bring a case to trial in Federal courts. To steal a relevant quote from Gladstone, “Justice delayed is justice denied.”
In related, recent news, it appears that Judge Aileen Cannon, the questionably appointed and sole district judge for the Southern District of Florida, is once again demonstrating that she’s still a partisan political hack rather than a competent and impartial federal judge, and has taken to presenting arguments in support of the defense that even the accused’s legal team hasn’t had the chutzpah to offer.
And why was the case moved to South Florida in the first place…?
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Where is Mar-a-Lago?
Re: Re:
and now donny thinks he can have his judge give him a SCIF in his marrie-largie bathroom.
Re: Re:
And in this case, and under these circumstances, why would that sole detail matter more than several other highly relevant details?
Re: ... Okay maybe not that shocked
I am shocked, shocked I say that a judge that (by my understanding) had to be slapped down twice by a higher court due to how they were handling a Trump case would turn out to still be a partisan hack bending over backwards to defend Trump.
As for why it ended up in her court LegalEagle did a vid covering that(it’s the same one that mentioned the afformentioned two benchslaps) and while the reason it ended up there wasn’t necessarily a result of corruption or shenanigans(dumb luck where the numbers were weighted in her favor) the fact that it stayed there is beyond absurd.
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I’m not sure why Cannon is still trying to go to bat for Trump, the DC case against him with the election interference already looks like a slam dunk against him that might end up with sentencing before the primary season is over, since the judge there seems to be more inclined to do a speedy trial and has seemingly very little patience for Trump’s delay tactics and desperate attempts to move the trial out of DC.
Unless the DC case somehow falls apart (which I doubt since it seems pretty rock-solid), I’m struggling to imagine why Cannon would want to try and either tilt the documents trial in Trump’s favor or help delay it. Fortunately, Jack Smith’s team can appeal to have her removed from the case if she oversteps her boundaries.
Re: Re:
Once a MAGAt stooge always a MAGAt stooge?
The ABA could contribute to fixing it. What they need to do is add rules saying that judge-shopping or forum-shopping is a violation of the code of ethics members of the ABA are required to follow and that if an attorney upon investigation is found to have engaged in those practice their membership in the ABA shall be suspended for a period of no less than 5 years or revoked entirely. IIRC membership in the ABA is a prerequisite to being allowed to practice law in virtually all jurisdictions.
Re:
IANAL, but from what I hear, if you ask a lawyer whether they’re required to be part of the ABA to practice law, they’ll generally burst out laughing and point out that the ABA has absolutely nothing to do with the federal and state bars.
They may also point out that the ABA has been artificially inflating their subscription counts for decades so they can desperately cling to the few remaining shreds of their former glory.