Which judge decides a case? This evergreen civil procedure question occupies many a civil procedure class. Discussions of Erie and related topics often focus on the litigating parties’ motivations and whether their filings were strategic, gamesmanship, or some mix of both. In Constitutional Case Management, Katherine Macfarlane shifts our focus to the courts themselves by exploring the mechanisms courts use to assign cases.
Macfarlane begins by exploring and questioning the source of case assignment power. Article III empowers Congress to create inferior courts, which includes the power to structure the lower federal judicial system. This power includes case assignment. For example, Congress has adopted laws allowing federal judges to sit by designation. These statutes, which authorize judges appointed to a specific federal court to temporarily sit elsewhere, change the cases they would otherwise hear in their home courts.
Congress also can establish rules governing litigation in the courts it has established. For example, 28 U.S.C. § 137 requires courts comprised of more than one judge to distribute cases “as provided by the rules and orders of the court.” Federal Rule of Civil Procedure 83(a) further requires that any district court rules must be approved by a majority of that court’s judges. Macfarlane reveals, though, that absent a clear local rule, some courts read § 137 to allow the district’s Chief Judge to assign cases unilaterally via general order. Macfarlane questions the constitutionality of that practice. Unlike a local rule enacted under Rule 83(a), a general order lacks public comment, engagement by the local bar, and a vote by all district judges.
Macfarlane then reviews local assignment rules and general orders in three federal districts. Her results demonstrate the widespread effect of these case-assignment mechanisms. While recent high-profile case-assignment controversies have made national news, her study shows that these problems also affect lower-profile, but still quite important, cases such as pro se habeas petitions.
Although specifics of Macfarlane’s study are too numerous to address in this summary, her research demonstrates a handful of interesting trends. Single-judge divisions within a district are more common than we might think. Courts create exceptions to random case assignment through general orders rather than Rule 83’s local rulemaking process. And notably, it is difficult to locate the case assignment practices of each federal district. With respect to this latter trend, the Western District of Texas has more than 166 general orders available online and the Southern District of Florida has thousands. These orders (in these and other districts in the study) establish a patchwork of case-assignment provisions. Some place certain substantive cases with specific judges; some divide by percentage the kinds of cases each judge will hear; and some divide the work based on divisions within the district as well as substantive areas.
While as a matter of policy Macfarlane may prefer that case assignments be random as opposed to directed through these various orders, that is not the substantial contribution of her article. By situating certain case-assignment mechanisms within the constitutional authority of Congress, and therefore under Rule 83, Macfarlane reveals a promising argument for challenging any directed assignment of cases within district courts. For example, in the mifepristone case, plaintiffs could have challenged the district court’s decision by questioning the constitutionality of how the case was assigned to that judge in a single-judge division.
Macfarlane is not alone in questioning the legitimacy of certain case-assignment provisions. Congress and the Judicial Conference have attempted reforms, although Congress has not passed any laws and at least one judicial district has ignored the Conference’s recent directives. Until courts adopt reforms, Macfarlane’s article offers a novel argument for challenging certain case-assignment provisions on a case-by-case basis. She adds a richness to our recurring “which judge” discussion, and I commend it to all as a piece they just might like lots.
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