Law Professors Say Judicial Conference’s Guidance on Case Assignment Practices is ‘Toothless’

“Based on the past history of judicial districts competing for patent cases, it’s not hard to imagine that at least some districts will reject the ‘policy’ and ‘guidance’ of the Judicial Conference, and judge shopping will continue apace.” – Professors Jonas Anderson and Paul Gugliuzza

Judicial conferenceLast week, the Judicial Conference of the United States issued guidance on recently announced changes to case assignment policies designed to prevent gamesmanship in litigation filed in U.S. district court. While the Conference’s guidance clarifies that the amendments are intended to impact patent lawsuits, where claims of judge-shopping have been rife, commentary from legal scholars highlights several issues with implementing these policy changes in the patent infringement context.

CACM Recommends Promulgating Public Rules and Orders on District-Wide Assignment

Concerns about judge shopping among patent litigants in U.S. district court was a major impetus for the recent policy changes, according to the Conference’s announcement. Referencing statements from Senators Thom Tillis (R-NC), former Senator Patrick Leahy (D-VT) and U.S. Supreme Court Chief Justice John Roberts, the Conference noted controversies around lawsuit filing activities at single-judge divisions within U.S. district courts. This scrutiny has sharpened thanks to several court rulings on hot-button political issues filed by parties who appear to be taking advantage of single-judge divisions to obtain favorable rulings resulting in nationwide injunctions.

Under the Conference’s guidance, the new policy on random case assignments informs U.S. district courts that they should assign cases district-wide in civil actions that seek to bar or mandate the enforcement of laws at the state or federal level. This policy was approved at the Conference’s March 2024 session based on the recommendation of the Committee on Court Administration and Case Management (CACM). The case assignment policy, which does not apply to criminal cases, takes its support from district court case management tools that are codified at 28 U.S.C. § 137(a) enabling a court with more than one judge to divide its business among those judges.

While district courts have wide discretion to shape their own case assignment policies, the Conference’s guidance includes several recommendations from CACM on best practices in implementing the new case assignment policy. To improve transparency, CACM recommended that district courts incorporate the policy through rules and orders instead of internal policies that are not publicly disclosed. Along with district-wide assignments, CACM also suggests shared case assignments to partner judges within the district in situations where the case has been filed in a single-judge division. Standing general orders or local rules should also be considered to avoid circumvention of district-wide assignment policies, according to the CACM’s recommendations.

Although the guidance makes it clear that the Conference intends the new case assignment policy to apply in patent cases, it further explained that the policy is applicable in any instance where the remedy sought has implications beyond the local community and the parties before the court. In these situations, having a case heard by a judge with ties to the local community is a less important consideration, the Conference notes. While judge-shopping in bankruptcy cases has been cited as a concern, the Conference’s guidance notes that case assignment in the bankruptcy context remains under study.

Are Patent Infringement Cases Outside the Scope of the Conference’s Policy?

Following the release of the Conference’s guidance on the new case assignment policy, a guest post published by PatentlyO and authored by law professors Jonas Anderson (University of Utah, SJ Quinney College of Law) and Paul Gugliuzza (Temple University, Beasley School of Law) pointed out several issues with the guidance that may limit the practical impacts of the policy adopted by the Conference. First and perhaps foremost, Anderson and Gugliuzza argue that patent cases appear to be excluded by the scope of the policy as stated by the Conference. By limiting the case assignment policy to cases seeking to bar or mandate a state or federal action, the professors contend that this excludes the majority of patent cases, which usually challenge the issuance of a specific patent rather than the federal patent statute itself.

Anderson and Gugliuzza further note that the form of the Conference’s policy presents an issue in that the new policy and recent guidance are effectively toothless in the face of a court’s case management discretion codified at Section 137(a). “Based on the past history of judicial districts competing for patent cases, it’s not hard to imagine that at least some districts will reject the ‘policy’ and ‘guidance’ of the Judicial Conference, and judge shopping will continue apace,” the professors wrote.

Finally, focusing the policy on nationwide injunction cases with political implications threatens the future of case assignment reform, as bipartisan backlash could discourage courts to follow the guidance in patent and bankruptcy cases where judge-shopping has been a long-running concern.



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Join the Discussion

One comment so far.

  • [Avatar for mike]
    March 19, 2024 10:26 pm

    “Judge shopping” is a derogatory phrase. The more appropriate phrase is “Expert jurist-searching in pursuit of speedy justice”.

    Too bad that Tillis, when it comes to his inability to create good patent policy, has egg on his face, again. Perhaps Tillis and Leahy should have stayed in their lane and not tried to bypass Congress with their 2021 letter to Chief Justice Roberts. Because now Senator Tillis has to backtrack (which is a correct backtrack).

    Here’s a reminder of words spoken to Senators before (not mine, but those of Ms. Knowles) when Senators stuck their noses in a branch of government not their own (here, the USPTO):
    “The Senators may consider that by requesting the USPTO to do what is likely too difficult for them to do (pass statutes restricting the rights of innovators in the United States), they can create a fast bypass to their goal, but the structure of our government does not allow for that.”

    These words apparently also apply to overstepping by the Judicial Conference under 28 USC §137(a), which states “The business of a court having more than one judge shall be divided among the judges as provided by [, not the Judicial Conference, but by] the rules and orders of the court.” Like individual Senators by letter, the Conference shouldn’t attempt to create a bypass to the statute.

    The Congress of the People writes the law. Not the executive or judicial branches. And the Congress shouldn’t circumvent, or try to convince other branches to circumvent, the structure of our government either, as Leahy and Tillis did back in 2021. Such improper influence peddling affected all patent cases in West Texas. Attempting to circumvent our Founding Father’s intentional separation of powers is a big no-no. This goes for all branches.

    Like Mr. Gene Quinn, I too ask, “What exactly is wrong with plaintiffs filing in a court where a judge has experience handling the precise type of action they are filing?” Are we seeking actual justice or getting too concerned with all jurists being generalists, which might lower standards for everyone.

    In medicine, we have specialists for a reason. Telling a heart surgery patient that he can go to any doctor – because now all doctors magically know how to perform heart surgery with equal craftsmanship – isn’t going to effectuate confidence in the state of medicine. Allowing the patient to get the care he/she needs will. The same applies here.

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