Choosing Your Judge

Abstract

Accounts of American litigation pose a contradiction: Forum shopping is acceptable, but judge shopping is not. Formal disfavor toward judge shopping is pervasive, and attempts by parties to manipulate the assignment of their case are deemed abusive and even sanctionable. Nevertheless, sophisticated judge-shopping tactics have proliferated in specific areas of the law—particularly in challenges to executive branch policies and in the reorganization of large companies under Chapter 11. In these disparate areas, judge-shopping strategies have been deployed in high-profile cases, ranging from a challenge to the FDA’s authorization of an abortion drug to the opioid-driven bankruptcy of Purdue Pharma. In these cases and others like them, plaintiffs used permissive venue rules to reach small geographical divisions where a single, preferred judge hears all or nearly all cases. These trends led to recent and contested proposals by the Judicial Conference to encourage random assignment.

This article first introduces a framework to distinguish between types of judge shopping, explaining why some forms are more problematic than others. Then, it compares judge shopping across areas of law, examining the basis for common intuitions against the practice. It concludes that judge shopping in the regulatory context is especially concerning, with its attendant impact on national governance and its selection away from judicial expertise in administrative law. In contrast, in bankruptcy cases, judge shopping can be disentangled from other controversial—and independently fixable—bankruptcy problems. When examined as a conceptually independent issue, judge shopping in the bankruptcy context raises relatively fewer concerns.

Having concluded that judge shopping is more problematic in some areas than others, this article examines potential reforms to address it, including and in addition to the Judicial Conference’s recent recommendations. Alternative possibilities include the abolition of single-judge divisions, reforms to venue statutes, the use of three-judge district court panels to review certain cases, and the granting of judicial peremptory strikes.