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Saturday, May 30, 2015

Ind. Courts - "The Seventh Circuit’s NonRandom Assignment Process" criticized at length in SCOTUS petition [Updated]

Maryland/DC attorney Steve Klepper of @MDAppeal just posted a tweet calling attention to the pending cert petition in Motorola Mobility LLC v. AU Optronics (here is the SCOTUSblog case page) - the tweet:

Steve Klepper ‏@MDAppeal 1h1 hour ago Tom Goldstein, at pp 33–39 of this petition, fearlessly calls out Judges Posner & Easterbrook on appellate procedure [link to the case page]
ILB: Indeed, pp. 33-39 [pdf pp. 45-51] are must read. Some quotes from the petition:
This case also presents the Court an opportunity to exercise its supervisory power to put an end to a practice, unique among the circuits, that dramatically undermines the real and perceived impartiality of the appellate process in the Seventh Circuit.

This case illustrates what has just been an acknowledged for the first time as a practice in the Seventh Circuit and, as far as petitioner can determine, nowhere else. Seventh Circuit judges hearing applications to permit an interlocutory review regularly assign to themselves the merits of cases they find particularly significant and interesting, rather than leaving the case to the ordinary random assignment process. Although not permitted by the circuit’s own procedures, see supra at 12, Chief Judge Wood and Judge Easterbrook recently acknowledged the practice publicly.[6] * * *

The fact that a handful of judges are routinely reaching out to decide particular kinds of cases and legal questions illustrates the danger of the practice. The result is not simply a deviation from the general principle of random assignment of cases – as might occur, for example, when judges swap panels as a matter of convenience or a randomly selected panel is assigned a related case. Instead, the Seventh Circuit has effectively given judges with particular jurisprudential interests or agendas an opportunity to thumb through the docket and assign themselves cases in which to advance those interests.

The effect of this practice has been pronounced. One scholar found that the “Seventh Circuit issued seventeen reported Rule 23(f) opinions during the Rule’s first nine years on the books, every single one of which was written by Judge Easterbrook or Judge Posner.”

[More] See also this Dec. 4, 2014 ILB post, quoting from an "On the Case" column by Alison Frankel that asked: "Are judges in the 7th U.S. Circuit Court of Appeals quietly taking advantage of their unusual assignment system to effect particular results?"

Posted by Marcia Oddi on May 30, 2015 10:09 AM
Posted to Ind. (7th Cir.) Decisions