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 surprisingl
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