This article is part of TPM Cafe, TPM’s home for opinion and news analysis. 

Forum shopping: Every lawyer does it. Plaintiffs’ lawyers file cases in the courts where they think they’re most likely to win. Defendants try to get cases moved to more favorable places or dismissed altogether. 

But judge shopping? Picking not just a court but the individual judge who hears the case? 

Surely litigants aren’t allowed to do that.  

Yet judge shopping is the norm in many federal courts throughout the country.

Lately, Republican state attorneys general and conservative activists have been exploiting quirks in rules about how cases are assigned to judges to challenge federal government policies on abortion, immigration, gun control, transgender rights, and more in front of hand-picked, sympathetic, Republican-appointed judges, primarily in Amarillo and Wichita Falls, Texas. 

Last month, the Judicial Conference of the United States (a group of judges who oversee the operation of the federal courts), adopted a policy that was widely reported as stopping the ability of plaintiffs to judge shop.

Predictably, the beneficiaries of judge shopping — namely, Republicans — decried the policy as politically motivated and urged district courts to ignore it. Democrats, for their part, demanded that the chief judge of the district encompassing Amarillo and Wichita Falls (the Northern District of Texas) adopt new case assignment rules right away. 

But in a letter sent to Senate Democrats last week, the Northern District’s chief judge refused to make any changes, citing a “consensus” among the district’s judges to maintain the status quo. You may not be surprised to learn that Republican presidents appointed ten of those eleven judges.

In short, despite the fanfare surrounding the Judicial Conference’s policy on random case assignment, nothing has changed. 

That’s unfortunate. There is no fairness or impartiality among the judges favored by Republicans. 

Judge Matthew Kacsmaryk in Amarillo — who, among other extremist rulings, struck down the FDA’s decades-old approval of the abortion drug mifepristone — was an anti-abortion activist before he was appointed by President Trump. 

And Judge Reed O’Connor in Wichita Falls struck down the Affordable Care Act in 2018 — six years after the Supreme Court largely upheld that law. (Judge O’Connor’s 2018 ruling was reversed on appeal.)

But high-profile, politically charged cases are not the only cases in which judge shopping wreaks havoc. As we’ve shown in a series of law review articles, judge shopping happens all the time in the obscure but important field of patent law. 

In the mid-2010s, for instance, over a thousand patent cases per year — a quarter of all patent cases nationwide — were filed before Judge Rodney Gilstrap in Marshall, Texas (population 23,000). More recently, Waco, Texas, has become the capital of U.S. patent litigation, with Judge Alan Albright receiving nearly one in four patent cases filed nationwide. Though the district encompassing Waco (the Western District of Texas) recently adopted rules that prevent shopping for Judge Albright, early indications are that judge-shopping patentees are heading back to Marshall and to Midland, Texas — both places where it’s possible for a plaintiff to pick their judge. 

To bring cases in, the judges like Gilstrap and Albright slant procedures and rulings to blatantly favor patent owners. The patent owners filing cases in Texas are primarily nonpracticing entities (pejoratively, “patent trolls”) — entities that don’t make anything and exist only to assert patents.

And judges have ample incentives to bring patent cases into their courtrooms. 

Being known as the judge in a specific area of law brings fame and notoriety. A large patent caseload brings economic benefits to local lawyers, the community, and even the judges themselves. And the “expert” reputation a judge develops can bring lucrative career opportunities when the judge retires from the bench. 

The current situation is untenable. No one should be denied access to abortion medication or the opportunity to seek asylum or the entrance to the bathroom of their choice simply because a conservative activist got to pick the judge. Judge shopping in patent cases also harms us all: not only does it corrupt our court system, many patent cases wouldn’t be filed at all if judge shopping weren’t possible. The cost of that needless litigation is baked into everything we buy, from eye medicine to iPhones. 

Ideally, the Judicial Conference would do more than adopt a policy suggesting that courts adopt case assignment systems that prevent judge shopping — it would adopt a rule requiring all cases to be randomly assigned among multiple judges.

Though this would be an easy fix, the Judicial Conference seems to doubt whether it can require district courts to do anything to stop judge shopping.

That’s too bad. The federal courts are facing a crisis of legitimacy. Ending judge shopping would restore some semblance of neutrality.  

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at The Conversation.

For the Kansas City Chiefs brass, it must have seemed like the perfect time to ask local voters to cough up some money for stadium renovations.

The team was riding high from a big Super Bowl win in February 2024, its third NFL championship in the past five years. Two fellow NFL franchises, the Buffalo Bills and Tennessee Titans, had received record taxpayer handouts for new stadiums in the past two years. And voters in neighboring Oklahoma City had recently approved at least $900 million in subsidies for a new NBA arena.

But the Chiefs and their partners in the effort, the Kansas City Royals of MLB, were in for a rude awakening.

On April 2, 2024, voters in Jackson County soundly rejected a referendum to extend a local sales tax for 40 years in order to provide $2 billion in public funding to build a new baseball stadium in downtown Kansas City and fund major renovations of Arrowhead Stadium, the home of the Chiefs.

The vote in Missouri came one month after the collapse of an arena project that would have moved the Washington, D.C.’s basketball and hockey teams, the Wizards and Capitals, to Alexandria, Virginia.

Similarly, proposed facilities in Las Vegas; Oakland, California; Tampa, Florida; and Chicago have all run into serious roadblocks, all stemming from taxpayers questioning why they should be forced to cover private businesses’ expenses.

What was looking like a flood of new taxpayer-financed sports facilities across the country has turned into a trickle.

A raw deal for the public

While leagues and team owners always claim that stadiums and arenas revitalize cities and generate huge economic returns, three decades of research by economists such as myself has proved otherwise.

A recent survey of over 130 academic studies shows that the direct economic benefits of stadiums fall well short of the enormous infusions of public money used to build them.

Even taking into account non-monetary benefits of sports teams, such as quality-of-life and civic pride, the survey concluded that “the large subsidies commonly devoted to constructing professional sports venues are not justified as worthwhile public investments.”

Giving voters a chance to weigh in

So the knowledge that stadiums are a terrible public investment is nothing new.

Why, then, were efforts to block a stadium successful in Kansas City, while residents of New York and Tennessee were saddled with billions in construction costs for new stadiums?

Most importantly, voters in Kansas City got a direct say in approving the project.

By contrast, Buffalo’s $850 million handout was negotiated in secret by the governor and dropped on unsuspecting taxpayers just days before a final vote was scheduled in the state legislature.

Nashville’s $1.3 billion stadium subsidy was approved by the mayor and Metro Council, not by voters, who could only express their displeasure by throwing the offending government officials out of office during the next election, far too late to stop the project.

It turns out that handing over taxpayer dollars to billionaire owners tends to be far less popular among regular citizens than among well-connected government officials.

An NFL owner trying to curry favor with local government officials can always lay on the charm offensive by, say, inviting them into the owner’s box for games. That strategy doesn’t work when trying to win over an entire electorate.

Owners also tend to overestimate how many sports fans there really are in a community. Even in a relatively small market like Kansas City, fewer than 1 in 30 residents of the metro area are season ticket holders for the Chiefs. A significant majority of the population does not attend a single Royals game in a typical season.

An even smaller fraction of the population has access to VIP seating, yet both Kansas City ownership groups emphasized how the new stadiums would expand these amenities.

Luxury boxes are excellent ways to increase team profits. Public sentiment? Not so much.

Threats to relocate fall flat

Team owners routinely use the tactic of threatening relocation in order to extract subsidies from cities and states. But such threats have tended to produce more resentment than fear, making voter referendums less likely to pass.

In the case of Kansas City, the threat of relocation — halfheartedly hinted at by Chiefs president Mark Donovan — wasn’t taken seriously.

Kansas City is an excellent NFL market with a deeply committed fan base that any sensible owner would be reluctant to abandon. In addition, television revenues in the NFL are equally shared among all teams, meaning that even a relatively small-market team like the Chiefs can afford to pay top dollar to keep its best players, like quarterback Patrick Mahomes and tight end — and Taylor Swift beau — Travis Kelce.

The Royals, with fewer championships and star power, might be a more likely candidate for relocation. But such a move would require finding another city willing to do what voters in Missouri were unwilling to do: provide huge subsidies for a new baseball stadium.

Such cities have proved elusive. The Oakland A’s, unable to convince anyone in the Bay Area to build them a new baseball stadium, recently announced a move to Las Vegas, only to find out that Nevadans weren’t exactly keen to pay for it, either. The team may end up playing the next three years in a minor league stadium in Sacramento, California, while sorting out its next move.

Billionaire team owners have been trying to convince cities to redirect public money to their private companies for decades. But these subsidies primarily benefit the owners through higher revenues and franchise valuations, not the communities paying for the stadiums.

With Jackson County delivering a resounding loss to team owners, perhaps more Americans are finally heeding the words of former Minnesota governor Jesse “The Body” Ventura.

“Stadiums should be like libraries,” he said during a 2001 House Judiciary Committee hearing. “If the taxpayers build it, they should be able to use it for free.”

This article is republished from The Conversation under a Creative Commons license. Read the original article.