Bench Memos

Re: Somewhat Higher Than One in 7.87 Trillion

A follow-up to my post highlighting concerns about Judge Reinhardt’s seemingly non-random assignment to Ninth Circuit cases:

This Texas Law Review article from 2000, titled “Neutral Assignment of Judges at the Court of Appeals,” makes a compelling argument that Fifth Circuit case assignments in civil-rights cases in the early 1960s were manipulated in order to ensure pro-civil rights majorities. (I learned of the article from the en banc petition that has been filed.)

The article also surveys assignment systems in the federal courts of appeals as of 2000 and concludes that “all systems permit a certain level of discretion and human intervention that, in the wrong circumstances, could be abused.” With respect to the Ninth Circuit in particular, the article observes that, rather than enforce a strict separation between the panel and case assignment processes, the Ninth Circuit clerk’s office “runs the [computer] program assigning both judges and cases.” The article faults those courts, like the Ninth Circuit, that seem to think that “the increased use of computer programs to assign cases” makes separation of the processes unimportant. It sets forth what its authors regard as the essential elements of a neutral assignment system.

(I don’t know what system the Ninth Circuit currently uses.)

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