Why Do Judges Compete for (Patent) Cases?

Abstract

It’s not just parties to litigation who forum shop. Sometimes judges forum sell by trying to attract cases to their courts. This judicial competition for cases has been documented in areas ranging from bankruptcy to antitrust to, most infamously, patent law. Despite the ubiquity of case-seeking behavior, one important question remains unanswered: why? Why do judges - particularly federal district judges, who enjoy life tenure and are paid fixed salaries - seek out more work, especially in cases that can be quite complex?

This article answers that question by developing a positive model of judicial behavior in the context of court competition. The incentives judges act on, we argue, range from the potentially laudable, such as intellectual interest in or prior experience with particular types of cases, to the definitely pernicious, such as economic benefits for the local bar, community, and even the judges themselves. Somewhere in between are the very human desires for the notoriety that comes with being known as the expert on a given topic and the satisfaction of making decisions that are consistent with one’s normative beliefs about the world.

The federal courts are facing a crisis of legitimacy, largely because of the radical political agenda pursued by the Supreme Court and several courts of appeals. Case-seeking activity by district judges threatens to further undermine public faith in (and the efficiency of) the litigation system. Thus, we outline ways to incentivize judges to work hard on cases they find interesting without perpetuating the biases endemic in the current “free market” of court competition.