Category Archives: Uncategorized

Preserving Incentive Awards

Feb 5, 2025 Christine BartholomewAdd a Comment

Since 2005 and passage of the Class Action Fairness Act, scholars have bemoaned the ongoing attack on class action procedures. Much of this work has focused on judicial reinterpretations of Federal Rule of Civil Procedure 23. Plaintiffs face new prerequisites to aggregating their claims such as: (1) stricter pleading standards; (2) the judicially created “ascertainability requirement”; and (3) earlier and more frequent Daubert motions, just to name a few. These increased procedural hurdles are already hampering private enforcement efforts. In 2022, the Eleventh Circuit lobbed a new challenge when it banned incentive awards for class representatives in Johnson v. NPAS Solutions, LLC. Alexander J. Noronha explores the decision—warts and all—in his student note.

Incentive awards are never guaranteed; plaintiffs file motions articulating why class representatives deserve recompense beyond their share of a settlement or judgment award. Judges evaluate these requests using multiple factors to consider representatives’ efforts on behalf of the class. Since passage of Rule 23 in 1966, courts in every circuit have approved such motions under the right circumstances—despite Rule 23 providing no explicit authority for such awards. In categorically foreclosing such awards, the Eleventh Circuit upended close to fifty years of precedent.

Noronha begins by succinctly chronicling the general history of class actions and the specific history of incentive awards. He details how such awards are rooted in equity, not statutory or constitutional authority. Courts and commentators have rationalized such recompense as necessary given services rendered to the class, including time, labor, and reputational costs incurred. Noronha maintains that these awards play a critical role in incentivizing individuals to serve as class representatives and private attorneys general, thereby advancing access to justice and enforcement of laws critical to the public interest.

With this background in place, Noronha moves to Johnson. He explains how the Eleventh Circuit anchored its reasoning in late nineteenth-century Supreme Court jurisprudence, primarily Trustees v. Greenbough (1881), an equity suit brought by a creditor alleging wrongdoing by the trustees of a fund. The prevailing plaintiff sought a substantial portion of the trust fund to offset travel expenses and pay him a salary for pursuing the suit. The Court permitted recovery of reasonable costs and attorney’s fees, creating what has become known as the “common fund doctrine.” But the Court denied plaintiff’s request for compensation for personal services and private expenses. Applying this hoary precedent, the Eleventh Circuit denied the request for an incentive award, deeming it “part salary and part bounty” and thereby improper.

Noronha argues that the Eleventh Circuit “overlooked crucial historical and legal context.” This dismantling of the Eleventh Circuit’s rationale represents the article’s biggest contribution. First, Greenough is the product of an anachronistic form of litigation, too distinguishable from the modern class action to warrant barring incentive awards. Relatedly, Greenough was an “equity receivership” suit, a form of litigation once commonplace but now obsolete. Thus, the decision proves a faulty foundation from which to render a blanket prohibition against class action incentive awards. As Noronha points out, equity receiverships are a closer analogue to Chapter 11 reorganizations than class actions.

Noronha next articulates how the policy concerns underlying Greenough do not translate to the class action context. Greenough sought to protect against creditors meddling with trust funds for their personal gain. But Federal Rule of Civil Procedure 23 provides safeguards against such meddling. The Eleventh Circuit failed to explain why further protection, in barring incentive awards, was warranted for class actions.

Finally, Noronha distinguishes the modest amounts (a few thousand dollars) plaintiffs seek as incentive awards from the “approximately $1.3 million in 2002 dollars” the Greenough plaintiff sought. The plaintiff in Greenough essentially demanded the equivalent of ten years salary simply for suing. In contrast, class representatives do not receive huge amounts of money for simply suing; they seek compensation for their risks and contributions, based on a multi-factor judicial test.

By debunking the primary authority on which the Eleventh Circuit relied, Noronha provides other circuits ample justification to reach a contrary conclusion. Nonetheless, Noronha proposes additional solutions should Johnson spread. One novel idea reconceptualizes incentive awards as costs, moving them squarely within the purview of costs and fees recoverable under Federal Rule of Civil Procedure 54(d). Unlike incentive awards, which lack statutory grounding, Rule 54 affords courts clear authority to permit discretionary cost awards to class representatives. Although attorneys have yet to rely on this rule to request incentive awards, Noronha convincingly argues how this approach is both historically and legally defensible.

On Behalf of All Others reminds us of the value of student notes in legal scholarship. Noronha’s article offers new insights, particularly regarding the history of incentive awards—limited as that history may be. When well done, as here, a note can illuminate corners of procedure heretofore underexplored.

Clarifying Constitutional Torts

Jan 7, 2025 James E. PfanderAdd a Comment

In a bracing engagement with a constitutional tort doctrine that he rightly describes as in disarray, Garrett West offers a diagnosis and proposes a cure. The doctrine has an inconstant commitment to the history of common law tort and an off-again, on-again engagement with first the nullification and then the affirmative rights (or duty) models of constitutional litigation. He offers a “deceptively simple” cure for the problems: with a better understanding of the nature of constitutional duty, the Court might better construct a coherent body of law to define constitutional rights and remedies.

Recounting the troubles with constitutional litigation, West begins with a familiar set of concerns. Despite the recognition of constitutional tort liability in Monroe v. Pape for state action claims under § 1983 and in Bivens v. Six Unknown Agents for claims against federal officers, limits on the doctrines narrow access to remedies. Bivens gives way in the hands of a Court wary of recognizing rights to sue, while forms of absolute and qualified immunity complicate effective redress. West also highlights the Court’s inconsistent approach to defining the elements of a constitutional tort, sometimes drawing on common law tort doctrine to fill out the elements and sometimes focusing instead on the constitutional text and related considerations.

Apart from recounting such problems, West offers an explanation. Nineteenth-century constitutional litigation often proceeded on a private or common law model in which the Constitution operated to nullify claims of official justification. In that world, official duties and individual rights were imposed and conferred by private law, often the general law of tort. Officials who were sued for violating those rights and duties would attempt to justify under state law and the constitutional provision in question could nullify that justification, leaving the official subject to liability at common law. Many early constitutional claims, including Osborn v. Bank of the United States, arose in this nullification model of litigation.

But nullification works only when private law rights and duties map onto the constitutional protections in question and remain under the control of federal judges keen to ensure the effective enforcement of the rights in question. Sometimes private law falls short—in Ex parte Young, private law failed to impose a duty on the attorney general of Minnesota to refrain from enforcing an unconstitutional state law. The Supreme Court thus chose to recognize a federal duty instead, one that it distinguished from that supporting injunctive relief based on private law (as in Osborn) and justified in part through precedent and in part through necessity. Since Ex parte Young, constitutional rights and duties have developed a life of their own, no longer tethered to the confines of private law. Monroe and Bivens confirm the switch from private to public law as the source of the duty being enforced.

That switch may have had important consequences for other developments. West shows that the exclusionary rule developed as a nullification rule, foreclosing the use of certain evidence at trial to prevent a form of self-incrimination. During the same term that Monroe came down, Mapp v. Ohio incorporated the exclusionary rule against the states. In doing so, the Court arguably reconceptualized the analysis, viewing the Fourth Amendment as the source of a constitutional duty imposed on police officers to refrain from unreasonable searches and seizures. Rather than preventing a self-incrimination violation that might occur at trial through nullification, suppression of the evidence was meant to redress the official’s duty to refrain from a wrongful search.

As West shows in a careful assessment of doctrinal nuance, all constitutional limitations on government power do not necessarily translate into official duties. Consider the dormant commerce clause (DCC) or the contracts clause, two restrictions on state power that were enforced through nullification remedies in the nineteenth century. The Court glossed over that conceptual limit in concluding during the 1990s that the DCC created rights affirmatively enforceable under section 1983 rather than through nullification. Similarly, in the relatively recent Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court upheld the right of individuals to challenge the structure of an agency on grounds that it interfered with the President’s removal powers under Article II. But limits on government power can be enforced or remedied through nullification; not every such limit translates into an official duty enforceable through injunctive relief.

West’s framework ramifies in a wide range of useful directions. He criticizes the use of common law tort to define the elements of constitutional tort claims, arguing persuasively that the elements should derive from the nature of the constitutional duty itself. Incorporation of the common law will tend to create a remedy that duplicates existing tort remedies without addressing the distinctive interests that animate the constitutional claim. He also helps us better understand pockets of absolute official immunity, as constitutional duties may differ for executive and legislative officers. More generally, West shares the reluctance of constitutional scholars such as Dick Fallon to define constitutional remedies by reference to private law of tort; private law can no longer supply a framework with which to vindicate the constitutional interests in question. The Court cannot turn back the clock to the nineteenth century world of nullification. The loss of general law, occasioned by the Erie doctrine, means that the framework for defining private law duty and right no longer lies within the control of the federal judiciary. Lacking authority to shape the rules of private law to vindicate federal interests, as Chief Justice Marshall did so adroitly in Osborn, the Court has been driven to the elaboration of constitutional law duties. That elaboration, in turn, has led to recognizing a host of rights that lack a foundation in private law.

West thus rejects the restoration of the nullification model proposed by such scholars as John Harrison, just as he rejects Harrison’s anti-suit injunction account of Ex parte Young. Instead, West leans into better defining constitutional duties. Such definitional efforts would foreground the text and ask if the provision operates to impose a duty on the officer in question. Rather than wholesale constitutionalism, in which every provision establishes an enforceable duty, West would have the Court create and administer a more nuanced body of law, a retail law of constitutional duty.

Puzzles remain. One cannot read the nineteenth-century cases without concluding that the Court worked hard to reshape the underlying general law to ensure effective remedies within the prevailing nullification regime. Sometimes, as Professor Woolhandler has shown, the Constitution was apparently deployed to force states to afford remedies that were unavailable in state court. In the Virginia Coupon Cases, for example, some combination of the due process and contract clauses nullifies state restrictions on general law remedies and imposes an enforceable federal duty on the collector to accept the disavowed coupons themselves. The cases suggest that the sharp line between nullification and duty may have blurred in the late nineteenth century, leading the Court to view its acceptance of the federal duty model in Ex parte Young as an incremental step.

While we have much to learn, West’s work promises a more fruitful framework for the analysis of constitutional torts. And it comes at the right time, as the American Law Institute rolls up its sleeves to prepare a Restatement of Constitutional Torts.

(In Defense of) Judicial Institutionalism

Nov 22, 2024 Marin K. LevyAdd a Comment

For much of his tenure as Chief Justice, John G. Roberts has been described as an “institutionalist.” It has been so common to see the word associated with the Chief as to almost be his epithet. (Homer gave us “the man of twists and turns, Odysseus” and the modern Court gave us “the institutionalist, John Roberts.”) But October Term 2023 has prompted a discussion of whether the label still fits. And beyond that, we may wonder if there are any others at One First Street (see, e.g., Justice Elena Kagan) to whom the descriptor applies.

But before we can engage in a meaningful conversation about whether any members of the current Court are institutionalists, we must address what we mean in using the term. We might share a general sense that the word denotes taking account of the interests of one’s court when deciding a case—but what interests, exactly? And should we be for institutionalism or against it? Or, to put a finer point on it, when should institutional considerations (however defined) eclipse one’s own independent judgment of how a case should be decided? Enter Rachel Bayefsky’s forthcoming article—Judicial Institutionalism—at just the right moment.

Judicial Institutionalism offers the most comprehensive treatment to date of this important and complex concept. The article begins by undertaking the difficult task of defining what institutionalism means within the judicial setting. Bayefsky’s definition centers on preserving the federal courts’ effective authority, which encompasses both sociological legitimacy (the public’s confidence in the courts) and efficient administration (the smooth working of the court system within its resources). After unpacking what institutionalism might mean, Bayefsky addresses whether we should favor judges who favor it—concluding that we should, for reasons ranging from the need to maintain the rule of law in a divided society to the need to ensure that cases are decided without delays that impede the workings of the judiciary.

At this point, one might think that Judicial Institutionalism has done enough—it has defined the concept and defended it. But Bayefsky is just getting started. She goes on to thoughtfully anticipate various concerns and critiques of her positions—chief among them that we should not want the power of the federal judiciary shored up or that even if we should, such shoring up should not be undertaken by the judiciary itself. Bayefsky responds to these concerns before going even further—and works through how institutionalism sits with legal theory and then various theories of legal interpretation. Specifically, the articles makes the claim that institutionalism is not simply a “good thing” from a moral perspective; it is also legally valuable and fits (to varying degrees) within different modes of constitutional and statutory interpretation. (Under Bayefsky’s construction, even ardent originalists and textualists can legitimately consider the courts’ effective authority when engaged in decision-making.) The article concludes by sketching out how institutional considerations should come into play—from deciding whether to grant a writ of certiorari to determining the scope of an equitable remedy—and how open judges should be about taking such considerations into account.

Stepping back, Judicial Institutionalism is quite ambitious and we are the ones who benefit by it. To mix topographical metaphors, it dives deep into a vitally important topic, yet also manages to cover a great deal of terrain. Building on prior scholarship (from Neil Siegel’s work on judicial statesmanship to Richard Fallon and Tara Grove’s work on conceptions of legitimacy), Bayefsky brings us to a new place. We end up with a thoughtful and carefully executed treatment of a concept that will help us better understand the judiciary. Now to be sure, not everyone will be convinced of every step along the way. But one of the many virtues of the article is that it is clearly mapped out, leaving the reader to decide how far she will follow the author and where she might part ways—thereby enabling a discussion worth having about institutionalism and the courts today.

We are plainly living through a moment in which some are questioning the legitimacy of our institutions—judicial and otherwise. Where this Court goes and how the public will receive it will depend, largely, on the actions of the Justices—including whether they depart from their personal views on particular legal questions to forge compromise and whether they move incrementally rather than in bounding steps. Again, it is critical for us to be able to speak particularly about whether and how the Justices should weigh these sorts of considerations—Bayefsky’s article equips us to do just that. One hopes that the members of the Court are engaged in the same conversation, given all the “twists and turns” to come.

Democratizing Dockets

Nov 7, 2024 Roger M. MichalskiAdd a Comment

Much has been written about the inaccessibility of court data. State courts are a mixed bag, but most state dockets are difficult to study. Tribal courts are even more heterogenous. The federal system provides reasonable top-level data but makes large-n studies of litigation activity tricky and costly. Commercial solutions are often pricey, incomplete, or both. The dearth of good data has been a massive impediment to the “democratization” of empirical studies in civil procedure. Scholars without significant research budgets or special connections have been stymied from answering the many empirical questions we all have about the day-to-day work of courts.

It is in this context that No Adjudication shines. Many civil procedure teachers have a sense of how many cases terminate early and without much fuss. Few can offer more than anecdotes when students inquire about specifics. No Adjudication fills that gap in important ways.

The first is to complicate our understanding of litigation. As other scholars have pointed out, teachers and scholars frequently highlight the many attention-grabbing cases with battling and beefy motions, drawn-out fights over years in multiple forums, flashy trials, and thousands of docket entries—Opioids, tobacco, asbestos, Vioxx, Texaco’s boomerang litigation. But perhaps rule-makers and scholars have not paid enough attention to the run-of-the-mill cases. Not only are trials vanishing and courts increasingly lawyerless, but No Adjudication shows that litigation often is also not public and not, as most presume, based on “presentation of facts and arguments to a neutral arbiter.” Most federal court cases (60%) resolve with only a complaint or complaint and an answer. Less than a third of cases include a filing of a dispositive motion. Most cases are in federal court for a few short weeks. Most produce only a handful of (largely routine and clerical) docket entries. What would civil procedure look like if designed primarily for “no adjudication” cases? What would a civil procedure class look like that taught future lawyers to practice ethically in such an environment?

These points are not entirely novel but certainly become more persuasive when buttressed with fresh, careful, and relevant analysis of ample data, the article’s second contribution. Its findings are based on a complete record of all Federal civil docket sheets for a two-year period, roughly 357,000 cases and millions of docket entries. That is a staggering amount of data. It far surpasses what most scholars have been able to access in the past. Previous studies frequently relied either on court opinions or on docket sheets from a sampling of cases. Both have important limitations that No Adjudication avoids.

The article’s third contribution is methodological in nature. To make sense of all these docket entries, the authors developed “a set of uniform litigation event labels” to bring order to the non-standardized and absurdly diverse ways that identical events are labeled in dockets around the country; this labeling process is available for future researchers. There are numerous ways to do this kind of work, with varying advantages and downsides. I suspect future researchers confronting the same task will benefit from the labeling process described here—whether they duplicate it, modify it, or reject it in favor of a different approach. Another methodological contribution is the authors’ humility. They contribute to the further development of the field by emphasizing the limitations of their approach and data. Even with access to amazing data, important varieties of litigation activity remain invisible because they occur “informally, behind closed doors or outside the courthouse,” do not result in a docket entry, and because there are “no uniform rules across districts for docket entries.”

The article is worth careful study in its own right. However, it also deserves attention as a sign of what might come next. The data used in the article comes from the SCALES-OKN project. Many people have generously contributed to the project over many years to acquire the data and make it accessible. That is a rare feat in legal scholarship that, I hope, will help to democratize studies of courts in every sense.

Leveling the Playing Field for Racial Justice in the Civil Litigation System

Oct 22, 2024 Suzette M. MalveauxAdd a Comment

In the United States, we are taught from an early age that we have a “right to our day in court.” This right to access the civil justice system is drilled into many of us as a given, something as American as apple pie. Yet upon further reflection, it is clear that this proverbial right has been tempered by forced arbitration. Most workers and consumers across the country cannot be heard by a jury of their peers in a free, public, transparent forum subject to appellate review, procedural guardrails, and substantive rights. Instead, anyone wanting a job, cell phone, bank account, you name it, is forced to use a private dispute resolution system to challenge their employer, landlord, retailer, by themselves and in secrecy.

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should also be exempt from compulsory arbitration.

Green sets the stage by walking the reader through over 30 years of Supreme Court history (1991-2002), describing how the Court erected a fortress of precedents favoring the enforcement of private arbitration agreements in cases involving statutory employment discrimination claims. Relying on a sample of cases, he lays the groundwork for how and why corporate America has succeeded at privatizing the civil justice system.

Recent events finally disrupted this trend of powerful companies and employers requiring consumers and employees to use private arbitration and challenge wrongdoing alone (through mandatory class action waivers embedded in their arbitration agreements). With the vast majority of Americans (Democrats and Republicans alike) disapproving of forced arbitration, and no dearth of horror stories from women around the country complaining of sexual assaults and harassment being sheltered by the forum, Congress passed EFASASHA.

Given this welcome progress, one would think expanding this shelter to cover victims of race discrimination would easily follow suit—a no brainer. Contrary to this logic, Congress has not passed a comparable bill for cases involving racial claims, instead turning its attention to age-based claims.

This unfair and inefficient piecemeal justice has led Green to make the case for how race discrimination claims that are part of a case related to a sexual assault or harassment dispute should fall under EFASASHA’s procedural protections. Relying on the seminal work of intersectionality scholars, he describes how the theory can bridge the procedural justice gap between race and sex claims. Where the two are inextricably linked, they must travel together—away from compulsory arbitration and into court.

The article’s particularly unique and hefty contribution is in its exploration of how the principles underlying preclusion doctrine can also bridge the procedural justice gap. Judicial economy, fairness, convenience, comity, and consistency undergird res judicata and collateral estoppel, providing attractive anchors for beleaguered judges, advocates, and parties alike. However, given the Supreme Court’s stubborn tilt toward enforcing arbitration agreements under the Federal Arbitration Act (FAA), preclusion doctrine has not fared well as a tool to prevent piecemeal litigation in arbitration and court. Arbitrable and unarbitrable claims in a single case have been sent to different fora, despite the risks and inefficiencies of this approach.

While the federal supplemental jurisdiction statute does not help Green bring unarbitrable sex claims and arbitrable race claims into one proceeding, the “intertwining” doctrine does. Examining over 35 years of precedents (1985-2022), he makes a cogent argument for how the intertwining doctrine, post-EFASASHA, may be the antidote to the forced separation of race and sex discrimination claims.

Historically, disputes including “arbitrable and unarbitrable claims aris[ing] out of the same transaction, and are sufficiently ‘intertwined’ factually and legally” could proceed together in the court system, regardless of an arbitration agreement. But Dean Witter Reynolds v. Byrd overruled this practice, resolving a split among the lower courts in favor of the strong federal policy for arbitration and removing judicial discretion to lean otherwise.

Green argues persuasively that EFASASHA revives the intertwining doctrine. Byrd contains a carve out, allowing a “countervailing policy manifested in another federal statute” to trump its strict prohibition of the intertwining doctrine in the context of arbitrable and unarbitrable claims. EFASASHA, Green argues, provides that other federal statute that squares off with the FAA (although one might say they are the same statute, given that EFASASHA is an amendment of the FAA) and justifies the consolidation of unarbitrable sexual misconduct claims and arbitrable race discrimination claims in the public court system. Such consolidation protects EFASASHA’s countervailing policy of preventing a sexual assault or harassment victim from having to testify twice in two fora, compounding their trauma. Several courts seem to agree, allowing race discrimination claims related to sexual assault or harassment disputes to proceed under EFASASHA.

Green then urges employers, retailers, and other businesses not to wait for the Court or Congress to fix the piecemeal litigation problem. He presses the private sector to proactively permit race discrimination claims to escape compulsory arbitration and class action bans, emphasizing the indefensibility of procedurally favoring one protected class over another. The potential reputational harm may be more than they realize. Socially conscious millennial employees dominating the workforce and high-profile race discrimination cases challenging forced arbitration—such as one brought by Black NFL coaches—may see this corporate “two-step” in a disfavorable light. This is especially true for those companies who only a few years ago claimed alliance with Black Lives Matter (BLM) and pledged support to diversity initiatives. Green challenges these businesses to live up to their public promises, lest they be judged as purely performative.

Finally, Green recognizes and takes stock of the role that the public can and has played to bring about procedural justice. These include: mass social movements, such as the walkout by 20,000 Google employees; high profile bi-partisan legislative advocacy, such as the testimony by former Fox News host Gretchen Carlson; and plaintiff lawyers’ creativity, such as mass individual arbitration filings. Green urges labor organizers, BLM, and attorneys to coalesce to form a “Black Labor Matters” coalition to push for procedural parity.

In sum, Expanding the Ban on Forced Arbitration to Race Claims offers a way forward, an empowering menu of prescriptions to the vexing problem of racial inequity in the civil justice system.

Case Assignment & Its Constitutional Implications

Oct 4, 2024 Brooke D. ColemanAdd a Comment

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.