Tuesday, December 9, 2014
Allegations of non-random assignment of gay marriage cases by the Ninth Circuit were offered recently by gay marriage opponent, Coalition for the Protection of Marriage. This allegation is not new, dating back to California Prop 8 litigation in 2010.
Ninth Circuit Chief Judge Kozinski responded on the record regarding the recent allegation, though what, if anything, that adds is left as an exercise for the reader. For more detailed reading on the issue of judicial panel assignments, one might examine a pair of recent articles available on SSRN.
First, a new working paper on SSRN by Adam S. Chilton (Chicago) and Marin K. Levy (Duke) Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals. addresses the issue of circuit assignment practices across all circuits. The abstract ably summarizes the work:
A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.
Second, Margaret V. Sachs (Georgia) has a forthcoming article in the UC Davis Law Review, Superstar Judges as Entrepreneurs: The Untold Story of Fraud-On-The-Market, that discusses Judge Posner and Easterbrook's opinions on class certification in securities class actions. Sachs notes that the two judges dominated the development of the law on this issue in the circuit by retaining merits appeals of cases they agreed to hear as motions judges. Sachs examines how these two "superstar" judges were able to select these cases through a pecularity of the Seventh Circuit assignment process.
The Administrative Office of the U.S. Courts suggests that assigment is typically random but that assignment might be made based on substance or geographic considerations:
Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseloads and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court's rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case.