Every litigant forum shops. Plaintiffs sue where they think they’ll get the best outcome. Defendants can challenge that choice in many ways: by objecting to jurisdiction or venue, for instance, or by removing the case from state to federal court. Though haggling over the forum isn’t always the best use of the parties’ money and the courts’ time, forum shopping is an accepted litigation strategy.
Sometimes, however, plaintiffs can shop not just for the court but for the individual judge who will hear their case. In recent years, state attorneys general and private interest groups have nullified federal laws on abortion, gun control, transgender rights, and more by suing in courts where they could be certain the case would be assigned to a specific, sympathetic judge. Judge shopping is also why patent infringement cases pile up in unusual places, such as Waco and Marshall, Texas, where judges give patent owners the settlement leverage they want. This Article critiques judge shopping in not just one area of law but as a unitary phenomenon. That analysis reveals surprising parallels among the various types of cases in which judge shopping occurs. Namely, the Article shows how judge shopping is not only about finding judges with preordained substantive views; it’s also driven by the favorable procedures those judges offer plaintiffs.
So many litigants have realized judge shopping’s benefits that it’s not going away. Recent attempts to curb judge shopping only in particular areas of the law or in specific courts won’t stop the practice entirely. The only realistic solution may be an uncomfortable one: giving both parties some ability to judge shop.