Episode 33 – Prof. Jonas Anderson on Why We Should Be Concerned That Judges Are Competing for Cases

I’m not completely sure how to convince you to listen to a patent law professor and a bankruptcy lawyer nerd out about why competition between judges for cases threatens to seriously damage already-fragile public trust in the judiciary, but here goes:

In an ideal, utopian world, justice would be blind, or, failing that, consistent: the outcome of a case in a federal court in Arkansas would match that reached in Connecticut, or Michigan, or California.

But we do not live in an ideal world: America’s over 670 federal district court judges, over 170 federal appellate court judges, and nine Supreme Court justices, not to mention the litany of bankruptcy judges, administrative law judges, magistrates, and other public servants who comprise the human element of the federal judiciary, are people, not automatons, and a case’s location may play a major role in its outcome.

As such, if you, the potential plaintiff, have the ability to start your lawsuit in multiple places, you’re having your lawyers do a thorough job vetting your options. This process, called “forum shopping,” is common—skipping it would border on malpractice.

But what about forum selling? Some judges have gone to unusual lengths to attract certain kinds of cases, and while that might be problematic on its own, it gets worse. Every single judicial district in an American state includes multiple judges, but some districts allow you to file in a division which might include just one. In other words, there are places in the United States where a plaintiff can guarantee they’ll land before a judge who openly, obviously wants them there.

If it’s a patent case, maybe the impact on the nation writ large is limited, but what if the case is political? This isn’t hypothetical—it’s already happening, and there’s no indication it will peter out on its own.

Prof. Jonas Anderson teaches patent law, intellectual property, trade secrets, civil procedure, and property at the University of Utah’s S.J. Quinney College of Law. In 2024, he and his writing partner, Prof. Paul Gugliuzza of the University of Texas School of Law, published “Why Do Judges Compete for Cases?”, an analysis of why federal district court judges, public servants with lifetime appointments and fixed salaries, actually compete with each other for more work. Some of the reasons discussed are completely innocuous; some, perhaps less so.

Prof. Anderson and I had a grand old time discussing forum selling in patent cases, bankruptcy, and politics, and how to appropriately limit it—in other words, how to address a genuine threat to public trust in the federal judiciary.

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