I was delighted to see the Judicial Conference of the United States is acting to promote random case assignment in certain declaratory judgment and injunction 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 forum-shopping in the federal courts, particularly when that forum-shopping allows plaintiffs to essentially select the judge who 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, who is open for business to anyone who 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 though 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 injunctions in friendly district courts, and Democratic state attorneys general seek national injunctions in friendly district courts, and I don't have to tell you where those are (the pattern holds in national injunction 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 should 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 should wait and let Congress fix the problem. But everyone is waiting for someone else to do something about it. It's good for the federal judiciary to act to get its own house in order.
Two final observations:
- There are a number of structural forces that have gotten us to this point, where the stakes are so high and the forum-shopping options are so high-powered. One is the expansion of state standing after Massachusetts v. EPA (though that seems to be ebbing after the Court's last term, as Will Baude and I explain here). The shift to abstract plaintiffs–coalitions of states–matters because there will be so many places to sue. Another is changes in preliminary injunction practice that make forum-shopping easier (more on that in a paper I'm writing). Still another, of course, is the rapid rise of the national injunction in the last ten years, a development that makes the stakes much higher and the forum selection more salient.
- 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 injunctive relief.'" To me that seems exactly right. The declaratory judgment and the injunction 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 injunctive 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 injunction, then the court's action is covered, but all without 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.
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