[HN Gopher] Patent Lawyer Turned Judge Advertises for Patent Tro...
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Patent Lawyer Turned Judge Advertises for Patent Trolls to Come to
His Court
Author : 8ytecoder
Score : 188 points
Date : 2020-10-05 19:34 UTC (3 hours ago)
(HTM) web link (www.techdirt.com)
(TXT) w3m dump (www.techdirt.com)
| dvt wrote:
| I had no idea federal judges weren't randomly assigned cases.
| What could the justification possibly be, as I was under the
| impression that this is common practice in just about every other
| jurisdiction? Maybe an attorney can chime in.
| Andrew_Russell wrote:
| Attorney here. The article actually addresses this. Judge
| Albright is the only Article III judge in Waco, and cases filed
| in Waco are automatically assigned to him.
|
| Generally speaking it would not be ideal for a case filed in
| one location to be assigned to a judge in another location.
| [deleted]
| tzs wrote:
| Some litigation is more complicated and technical than most
| other litigation. Generally in such cases both plaintiffs and
| defendants want a judge experienced in that type of case.
|
| Many district use random assignment for most cases, but for
| those more complicated and technical cases, try to assign them
| to a judge that has experience with them.
|
| Patent litigation is one such type of litigation.
| myself248 wrote:
| Experienced in the law, sure, that's perfectly sensible.
|
| But having come from a career where his entire existence
| depended on patents being broad and strong and enforceable,
| it's hard to suggest with a straight face that such a judge
| would be impartial on matters where those specific matters
| are in question.
|
| It'd be like asking Pele his favorite sport, except people's
| livelihoods depend the answer. You can't be serious.
| sida wrote:
| What is the judge's motivation to advertise for patent trolls to
| come to his court?
| renewiltord wrote:
| I'd hypothesize: (with former more likely than latter)
|
| * He's effecting political change in the direction he desires
|
| * Kickbacks to families, friends, and relatives
| btilly wrote:
| I would recommend two fixes.
|
| 1. Random assignment of judges to cases.
|
| 2. Any judge accused of failing to recuse from cases with a
| conflict of interest has to face a randomly chosen panel of
| judges. If the panel agrees that the judge has deliberately taken
| on cases with a conflict of interest, the judge can be removed
| from the judiciary.
|
| The first would make shopping for a judge harder. For the second,
| the way he advertised and then his behavior when he got the cases
| is hopefully enough to convince a panel of neutral judges that he
| is biased.
|
| The first would be a relatively easy change to make. The second
| is complicated by the Constitution, which reserves impeachment of
| judges to Congress. Something which has only happened 15 times.
|
| However
| https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti...
| argues, convincingly to me, that it is within the power of
| Congress to write a law enabling other judges to remove a judge.
| (Though not to criminally charge him for his behavior - that
| still requires Congress.)
| joncp wrote:
| > the judge can be removed from the judiciary
|
| And disbarred. He shouldn't be able to say "oh well, I tried. I
| guess I'll go back to lawyering."
| rhino369 wrote:
| These judge's don't have a real conflict of interest--as is
| traditionally understood. They don't make money from these
| suits--directly or indirectly.
| dogma1138 wrote:
| If they are elected I'm sure they'll get plenty of donations
| next time they run tho.
| xbar wrote:
| Appointed. Irrelevant.
| jjoonathan wrote:
| > They don't make money from these suits--directly or
| indirectly.
|
| That's a suspiciously strong claim given the enormous number
| of options for laundering money/value indirectly. What makes
| you so sure his contribution to patent trolls' cause is
| completely unreciprocated?
| tqi wrote:
| 1. Random assignment of judges to cases.
|
| I can definitely see the benefits, but don't we also want
| judges to have domain knowledge?
| jrumbut wrote:
| If you can't trust judges you're in a lot of trouble. Why trust
| the randomizer? Or what happens if I accuse the randomizer of
| being untrustworthy? What happens in smaller districts where
| there may be a small number of choices?
|
| You may want to check out how elections were done in Venice in
| centuries past. They thought they could randimize their way to
| fairness too, it looks pretty silly and ineffective in
| retrospect: https://www.venetoinside.com/hidden-
| treasures/post/the-elect...
|
| The legal system is for the exceptions, the places that
| automated systems break down, the places that need human
| judgment.
|
| That's the importance of a free press. We can't work without
| trust, we need it, even though it introduces certain risks.
| jjoonathan wrote:
| > Why trust the randomizer?
|
| It's easy to do worse than random. Trying to do better than
| random often ends with doing worse than random, while aiming
| for randomness usually ends with randomness.
|
| > They thought they could randimize their way to fairness
| too, it looks pretty silly and ineffective in retrospect:
|
| I see information about the process but none about how and
| why it failed.
| jackfoxy wrote:
| Yeah, wasn't Venice a republic for close to 1,000 years?
| What ultimately did in Venice was Napoleon conquering all
| of continental Europe.
| rectang wrote:
| > _If you can 't trust judges you're in a lot of trouble._
|
| Exactly.
|
| We can't trust judges. And we're in a lot of trouble.
| AnimalMuppet wrote:
| IANAL. But if I were sued in that court and lost, I would
| consider appealing on the grounds that I could not get a fair
| trial before that judge, and I would use this as evidence of his
| lack of impartiality.
| Andrew_Russell wrote:
| What Judge Albright is doing might be "selling" in the sense of
| marketing, but not in the sense that he gets any kind of money
| when people file in his court.
|
| Since the Supreme Court's T.C. Heartland case, patent cases can
| only be brought in the defendant's state of incorporation, or
| "where the defendant . . . has a regular and established place of
| business."
|
| In practice this means that a plaintiff has to bring a case where
| the company has a presence, or in its state of incorporation.
|
| Typically a patent plaintiff does not want to sue in a
| defendant's home jurisdiction, because there is a perception that
| a defendant has an advantage on its home turf, and the patent
| holder won't get a fair shake.
|
| A patent plaintiff also typically does not want to sue in a
| jurisdiction where the judge may have little or no patent law
| experience, because it greatly increases the risks to everyone
| involved. Patent law can be tricky.
|
| That leaves the state of incorporation. Conveniently, Delaware--
| the most common state of incorporation and the jurisdiction where
| I practice--has a federal judiciary that is exceptionally
| experienced in patent litigation. It's a great forum for cases.
|
| That said, it's also a small court, with only four sitting
| judges. Almost every year for more than the past 10 years, it has
| ranked among the busiest courts in the country by number of
| judges. Even though the Delaware judges are absolute experts on
| patent law, it would be tough for any four people to deal with
| the torrent of patent cases that get filed here. So things like
| decisions on motions can sometimes be slower than some other
| courts.
|
| Because Delaware can be congested, and defendants' home turf
| (often California) is seen as biased, plaintiffs sometimes seek
| other options.
|
| You could view what Judge Albright is doing as saying "hey,
| plaintiffs, I know all about patent law and my court is not busy.
| You're safe to file here and you will get a judge who is not
| bothered by a patent case, with a fairly predictable outcome
| based on the merits of the case."
|
| That's maybe "selling" in the sense of marketing, but it's
| certainly not "corrupt" in any way.
| triceratops wrote:
| It's definitely suspicious behavior. Do judges specializing in
| other areas of the law routinely make visits to potential
| litigants encouraging them to file in their court? What if a
| medical malpractice or accident/injury lawyer turned judge put
| up billboards like they did when they used to practice? Would
| that be considered acceptable?
| josaka wrote:
| There's an explanation for this that has nothing to do with
| corruption. Courts regularly develop areas of expertise and, as a
| result, become attractive places to file. Delaware is the
| standard for corporate formation, in part because the judges
| there know have well developed caselaw, expertise, and local
| rules for the purpose. SDNY courts are the go-to forum for
| bankruptcy disputes for similar reasons.
| fncypants wrote:
| You are absolutely correct. Patent law is a specialized legal
| field and having experienced judges is a plus for everyone,
| because it creates certainty that the parties can rely on when
| making business decisions. This judge has implemented some
| interesting local rules that are aimed at decreasing litigation
| costs at the outset of the case. There is nothing here that
| says this judge is biased towards patent owners or accused
| infringers (and I can attest to that, knowing Judge Albright
| personally). I would have no trouble advising my client sued in
| this district that they will get a fair shake if the case has
| no merit.
|
| There is a downside though, where this differs from SDNY and
| bankruptcy. Patent law could benefit from major reform to
| eliminate abusive lawsuits and decrease transactional costs of
| enforcement and defense. Because patent owners can still shop
| around for some lawsuits, a judge trying to build a docket like
| this does not have an incentive to implement that major reform
| from the ground up. Any reform would only be tweaks, not
| paradigm shifts (like the local rules mentioned above). The
| problem is akin to regulatory capture.
| dielll wrote:
| As a non american please explain to me like am 5:
|
| 1. why a judge advertises himself to lawyers, does he/she get
| special bonuses from those cases?
|
| 2. Why lawyers in America can assign their cases to specific
| judges
|
| 3. why the hell are Americans so litigious
| kps wrote:
| What broken system enables this sort of corruption, and why
| hasn't it been fixed?
| macintux wrote:
| Judges have a great deal of independence. It's hard to
| interfere with the way they run their courts because we want to
| keep politicians from meddling.
| brundolf wrote:
| The real problem is how much power the president has to
| appoint them (and then let them serve for life). Judges
| should be elected democratically.
| MaxBarraclough wrote:
| It isn't a binary choice between politicians choosing
| judges, and elections for judges. Both these approaches
| have the effect of politicising the matter. In England, the
| legal system has its own (somewhat arcane) solution for
| appointing judges.
|
| Personally I strongly favour this approach. Judges should
| not be overtly political, and the process for their
| appointment should be closer to the way we certify doctors
| than to the way we choose politicians.
|
| The English system doesn't provide an ironclad guarantee
| against political meddling, but there's always a tradeoff
| there: we want both accountability and independence, and
| these are opposing. (Also, I'm English, for what that's
| worth.)
|
| https://www.judiciary.uk/about-the-judiciary/the-
| judiciary-t...
|
| https://en.wikipedia.org/wiki/High_Court_judge_(England_and
| _...
| brundolf wrote:
| That sounds interesting. My main point was just that
| right now, a huge amount of judicial power is bundled
| under a single big presidential election, instead of
| being allowed to have more political granularity like
| Congress. Imagine if the president got to nominate
| congresspeople. Think about how broken that would be.
| SketchySeaBeast wrote:
| > Judges should be elected democratically.
|
| This doesn't feel like the right answer. Judges should feel
| free to make an unpopular judgement if it's what the law
| dictates.
| avmich wrote:
| Judges should be accountable, like everybody else.
| Impeachment mechanism should have real strength - it
| doesn't seem to have it now. Cases of impeaching judges
| for sufficiently erroneous rulings should be quite
| possible.
|
| This is an opinion.
| munk-a wrote:
| Impeachments of judges (up to and including the supreme
| court) is something that is _probably_ possible, it seems
| to be covered by general laws around mid-term removal
| from office - it just hasn 't been thoroughly exercised
| in the US since nobody wants the headache of trying to
| counter all the lawsuits associated with it.
| SketchySeaBeast wrote:
| Accountable to the law? Absolutely. That sort of removal
| could be done by a judicial council or some other
| construct of internal professionals - just as a lawyer
| can become disbarred. "Tough on Crime" is anathema to
| actual justice.
| brundolf wrote:
| It's possible to be democratically selected, and still
| have a life-term so you can be insulated from politics.
| The arbitrary way that the president can select all
| federal judges for the entire country (to my
| understanding) not only skews the judicial system, it
| adds a whole new dimension the the _presidential_
| election which really seems to distort what the job is
| actually intended to be.
|
| For example, it was the sole reason a lot of people voted
| for Trump: because at this moment in history there
| happened, through sheer chance, to be this hugely
| disproportionate opportunity for a party to grab power
| that will last a _generation_. Just because a bunch of
| people retired around the same time. And this momentous
| opportunity completely hinged on what would already be
| the most important single election in the land. That
| doesn 't feel remotely like what the founding fathers
| intended.
| tonyedgecombe wrote:
| Can you imagine the discourse if they were trying to get
| elected.
| Analemma_ wrote:
| No, no, no, absolutely not. Elected judges are a horrible
| idea and any jurisdiction with elected judges is
| immediately suspect as far as criminal sentencing. Every
| time I visit a state/county which elects its judges, I see
| billboards for "Re-elect Judge So-and-so - tough on crime!"
| and wonder how anyone could possibly think the justice
| system there is working correctly and fairly.
|
| Even sheriffs shouldn't be elected, never mind judges. How
| this ever became an accepted practice in America is beyond
| my comprehension.
| kevin_thibedeau wrote:
| Shire reaves are county administrators. It's a holdover
| from common law governance.
| Fezzik wrote:
| Almost every state has elected trial court judges. They
| may be initially appointed, but ultimately they must face
| an election in all but a few states. Though their terms
| are much longer than other elected officials.
|
| https://courts.uslegal.com/selection-of-judges/state-by-
| stat...
| avmich wrote:
| > wonder how anyone could possibly think
|
| The idea is that people are choosing how to live, and
| make common rules using government bodies.
|
| Elected judges fit this idea. Why it's a bad idea?
| vkou wrote:
| > Why it's a bad idea?
|
| For the same reason that it's insane to have two wolves
| and a sheep vote on what they are having for dinner.
|
| You elect representatives, who set the law. The job of a
| judge is to enforce that law impartially. Looking at the
| track record of elected officials, it should be pretty
| clear that impartiality is not something that elections
| select for.
| renewiltord wrote:
| Because incentives easily misalign with imperfect
| information and because first past the post systems
| transform things into majority rule.
|
| i.e. a judge's job is to interpret the law for a case, so
| you don't want to impair that with other incentives. i.e.
| the best judge is a program that, supplied the law and
| supplied the evidence, provides a judgment that most
| precisely approximates the law's intent in this
| situation. This can be _very_ far from the people 's
| present intent.
|
| So if you give the people too much power over the judge,
| they will transform law-execution into present-intent-
| execution, something we do not desire.
|
| If law were totally unambiguous and evidence were totally
| unambiguous, we might be fully constrained. An elected
| judge would still be unable to appease the crowd. But we
| know something: law _is_ ambiguous and evidence is also
| ambiguous. We need the human here to disambiguate and
| match against statement and then intent. And adding
| political necessities to that process hurts it.
| dahfizz wrote:
| Considering the quality of presidential candidates
| recently, I don't think making Judge an elected position
| would decrease the political influence over the courts.
| jcranmer wrote:
| I take it that you do not live in a state that elects its
| judges.
| munk-a wrote:
| I strongly disagree with this - I support a lot of choice
| in democracy but I am concerned with the general existence
| of elections for local posts. I think a significant
| proportion of the population just blanket votes D or R and
| so you can get some really shady folks elected into these
| posts if they end up getting party endorsement.
| smnrchrds wrote:
| > _Justices chosen by voters reverse death penalties at
| less than half the rate of those who are appointed, a
| Reuters analysis finds, suggesting that politics play a
| part in appeals._
|
| We shouldn't want politics in court.
|
| Source: https://www.reuters.com/investigates/special-
| report/usa-deat...
| hinkley wrote:
| I don't know about 'want' but it's going to happen.
|
| The branches of the US government are meant as a check
| against power mongering by the other two branches. We
| modified other attempts at doing so, and others have done
| the same with ours.
|
| Normal court cases may not be about politics, but
| appellate and supreme court cases often are. I can appeal
| a ruling around a law by putting the law itself on trial,
| invalidating all or parts of it. If Congress doesn't like
| it, they can come back and try to change the state or
| federal constitution to put it back, but that is so
| difficult that only some very big items make it through.
|
| Where a lower court judge can make a mess is by
| generating more appeals than we (the People, or the
| Defendent) can afford to pursue. I think it would be
| disingenuous to say that isn't also political. I don't
| see how a judge who favors one side of an unresolved
| policy dispute can avoid generating extra work for the
| higher courts. However, they may piss enough people off
| that the resources are allocated to settle this once and
| for all, legislatively or judicially.
| paultopia wrote:
| Although to be fair, the behavior as described by the article
| is a blatant ethical violation, and the circuit governance
| bodies do have some capacity to sanction judges who violate
| the requirement of impartiality as blatantly as this.
| derekja wrote:
| Two words: regulatory capture
| gtvwill wrote:
| Lol all of them. It hasn't been fixed because people are a mix
| of lazy and greedy. Your either greedy and a part of the system
| or lazy because you tolerate it's existence and literally keep
| plodding along with your day while stuff like this continues.
|
| Tbh it's a major source of depression for me. We're boned and I
| don't see any chance as a world of us getting better. Humans it
| seems just aren't nice people.
| beervirus wrote:
| 1. Did he really go on a "tour to convince companies to bring
| patent cases in his court"? The only support is this link[0],
| which really doesn't say much.
|
| 2. It's not like he has some corrupt motive to encourage patent
| cases to be brought in his court (he doesn't get paid per case or
| anything). Patent plaintiffs just prefer a judge who has
| expertise in patent cases. So what?
|
| [0] https://wacotrib.com/news/local/waco-becoming-hotbed-for-
| int...
| burkaman wrote:
| It's also supported by the paper they quote from extensively,
| which is itself supported by hundreds of references.
|
| https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3668514
| beervirus wrote:
| Actually no, it isn't. The only time the paper even alludes
| to him going on some tour, the only citation is to the same
| article I mentioned above. Which, like I said, doesn't really
| have any information about the alleged tour.
|
| The "hundreds of references" don't have anything to do with
| what I asked.
| xbar wrote:
| What's your thinking about the case count moving from 90
| per year to 800 per year and now carrying most patent cases
| in the US? Do you suppose there is a West Texas Patent Case
| Mystery Spot Attractor?
| beervirus wrote:
| Not at all. Judge Albright was well-known and respected
| as a patent litigator before he became a judge. It's no
| mystery why patent litigants would want their cases
| before a judge who understands patent law.
|
| It's like the Court of Chancery in Delaware being the
| place where a lot of corporate governance issues get
| litigated. It's not because of bribery, it's because
| that's where the expertise is.
| topspin wrote:
| > (he doesn't get paid per case or anything).
|
| Contemporary corruption isn't that simple minded.
|
| The patent trolls and other litigants involved in these cases
| employ the sons and daughters and son-in-laws and daughter-in-
| laws and extended family members and friends of the congress
| persons that fund courts. They do this through $500k/year
| nonprofit chairpersonships and choice positions in wealthy
| corporations and other institutions, and nifty positions on the
| rowing team so Johnny gets into Harvard. The judge gets a well
| funded court with lots of clerks and other staff the Judge gets
| to pick, and a docket full of cases with billions of dollars at
| stake. So the judge gets courted by the most wealthy and
| influential people in the world.
|
| People that eat most of their dinners with the circle of
| lawyers that work for Apple and Google and Disney and all the
| mysterious hedge funds tend to live in multiple enormous houses
| and have burgeoning bank accounts.
| xbar wrote:
| Former patent goon drives billions of dollars in patent goon
| business to his door. This is a sex-toy-patent lawyer who got
| nominated as a West-Texas-oil-country Federal judge and who
| is advertising to patent troll holding companies to sue the
| wealthiest companies in America in his court and then so
| thoroughly denies motions to move the cases to more
| reasonable courts that he pre-emptively tries to deny any
| further motions to move such cases because he wants to keep
| all the cases in his jurisdiction. For reasons.
|
| Nothing suspect about this at all.
| dmurray wrote:
| What's in it for him?
|
| It seems obvious that this guy is corrupt, but exactly how?
| Presumably the federal government doesnt pay per case. Does he
| have an interest in a local law firm? Does he get kickbacks in
| cash? Or is he planning on returning to practicing law in a few
| years through the revolving door and this will raise his profile?
|
| I guess we shouldn't rule out the possibility that he just feels
| passionately about patent law and shaping the American legal
| landscape to his own opinions. The late Justice Ginsberg was
| widely praised for the same. But somehow it's harder to believe
| in this field.
| freedomben wrote:
| This is exactly my question. Why? Do they get paid per case or
| something? Are there kickbacks?
| salawat wrote:
| You really don't see it?
|
| _Stare decisis_. He can load whatever judicial circuit he 's
| in with patent troll friendly precedent. The only way to undo
| it is at the appellate or Supreme Court.
|
| If you can't see where the conflict there is, I'm not sure I
| can make it any clearer. That he _actively advertised_ to
| attract court traffic to his jurisdiction should be quite
| alarming. That he 's already "telegraphed" his proclivities
| should be grounds for at a minimum an ethics inquest.
|
| A blatantly prejudiced judge bodes well for no one.
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