Sunday, December 1, 2013

The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

The title of this post comes from this upcoming article arguing that federal cases are not actually assigned randomly to district judges. Rather, the judges are able to influence policy by accepting cases "nonrandom[ly]" assigned on the basis of subject matter. Here's the abstract:

Stop-and-friskThe Southern District of New York’s local rules are clear: "[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time." Yet for the past fourteen years, Southern District Judge Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s "related cases" local rule, which allows judges to "accept" a new case related to an earlier-filed case already on their docket. Unlike past stop-and-frisk scholarship, this article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence.

The article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of oversight. The article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of "hot-spot policing." The article turns to the stop-and-frisk litigation before Judge Scheindlin, using it to examine the serious — and substantive — consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. The article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, and advocates for the publication of assignment decisions as well as for motion practice challenging the assignments. Finally, it warns of the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment. Yet because her interpretation is so broad, her decisions may be reversed, and the rights at stake narrowed.

CRL&P related posts:

Fourth Amendment, Stop-and-frisk | Permalink


Thanks for the post, but a critical detail was omitted. The author of the article had been assistant corporation counsel for the City of New York since April of 2012, defending the city in civil rights cases. While that doesn't mean there are unimportant insights in the article, her distinct perspective should have been disclosed. As should mine: I was one of the retired judges who signed onto an amicus brief in support of vacating Judge Scheindln's disqualification at the hands of the Second Circuit -- a decision that was made without a record, briefing, an opinion from the judge. Indeed, a central question we have had is where the panel got its information from -- untested, one sided though it made be. Here's one answer.

Posted by: Judge Nancy Gertner | Dec 2, 2013 12:35:38 PM

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