I have now had some time to digest the Judicial Conference's policy. So much of what was reported about the policy was not accurate. The Washington Post headline sums things up: "U.S. courts clarify policy limiting 'judge shopping'—On Tuesday, officials said a new policy would mean assigning certain cases randomly. Now they say it is just guidance." I still don't understand how this rollout could have been executed so poorly.
The policy is only guidance, and is not binding. The policy does not single out single-judge divisions, but randomly assigns cases throughout the district. The policy does nothing at all to address bankruptcy or patent forum-shopping. The policy does not apply to all injunctive relief–only certain types of state or nationwide relief. Critically, cases that have "implications beyond the parties before the court" would be reassigned. There will have to be litigation about what that standard entails. Moreover, this standard is triggered whenever a new complaint or motion is filed. I can imagine some gamesmanship, as plaintiffs who get a bad draw can seek the requested relief as a guaranteed way to get the case reassigned–even after the initial judge may have invested time and effort into the case.
In short, the policy does nothing to directly reduce the number of nationwide and statewide injunctions. Instead, as Judge Sutton explained, the policy is, at best, an "an elegant solution" to reduce nationwide injunctions. What is that "elegant solution"? The policy deprives certain litigants of the venue of their choice, and reassigns it to a venue not-of-their-choosing, where the desired expansive relief is less likely. Will this policy even work?
