13 ms·

Patent Lawyer Turned Judge Advertises for Patent Trolls to Come to His Court

381 points by 8ytecoder 6y ago

kps 6y ago
What broken system enables this sort of corruption, and why hasn't it been fixed?
- macintux 6y ago
  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 6y ago
    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.
    - SketchySeaBeast 6y ago
      > 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 6y ago
        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.
        SketchySeaBeast 6y ago
        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.
        avmich 6y ago
        > Accountable to the law? Absolutely The country is the country of people, they establish all the mechanisms. Including law. The "country of people" legally is written in founding papers, but here we're questioning on the level of founding papers. Constitution offers a mechanism to change it as a whole; but there currently are other mechanisms too. Working judges impeachment should perhaps be practical - or it should be clear why not.
        munk-a 6y ago
        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.
        srtjstjsj 6y ago
        Huh? What lawsuits? There is an impeachment trial and that's it.
      - brundolf 6y ago
        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.
        srtjstjsj 6y ago
        > through sheer chance It wasn't sheer chance. It was Senate Majority Leader Mitch Mcconnell subverting the Constitution with a coup, refusing to even let the Senate consider whether to approve Presidemt Obama's nominations. And now that Mcconnell has eliminated the principle of upholding the Constitution, we can expect the same from every Senate for at least a generation, and judges will only be appointed when the President and the Senate are the same party.
    - tonyedgecombe 6y ago
      Can you imagine the discourse if they were trying to get elected.
    - Analemma_ 6y ago
      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.
      - avmich 6y ago
        > 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 6y ago
        > 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 6y ago
        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 6y ago
      Considering the quality of presidential candidates recently, I don't think making Judge an elected position would decrease the political influence over the courts.
    - smnrchrds 6y ago
      > 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-deathpenalty-judges/ https://www.reuters.com/investigates/special-report/usa-deat...
      - hinkley 6y ago
        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.
    - jcranmer 6y ago
      I take it that you do not live in a state that elects its judges.
    - munk-a 6y ago
      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.
    - MaxBarraclough 6y ago
      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-the-government-and-the-constitution/jud-acc-ind/jud-appts/ https://www.judiciary.uk/about-the-judiciary/the-judiciary-t... https://en.wikipedia.org/wiki/High_Court_judge_(England_and_Wales)#Appointment https://en.wikipedia.org/wiki/High_Court_judge_(England_and_...
      - brundolf 6y ago
        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.
  - paultopia 6y ago
    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 6y ago
  Two words: regulatory capture
- gtvwill 6y ago
  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.
dvt 6y ago
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.
- _kurh 6y ago
  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 6y ago
  [deleted]
- tzs 6y ago
  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 6y ago
    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.
beervirus 6y ago
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-intellectual-property-cases-with-new-federal-judge/article_0bcd75b0-07c5-5e70-b371-b20e059a3717.html https://wacotrib.com/news/local/waco-becoming-hotbed-for-int...
- burkaman 6y ago
  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 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3668514
  - beervirus 6y ago
    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 6y ago
      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 6y ago
        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.
dmurray 6y ago
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 6y ago
  This is exactly my question. Why? Do they get paid per case or something? Are there kickbacks?
- salawat 6y ago
  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.
  - tehwebguy 6y ago
    They are asking specifically what the judge will get out of it. I think you are implying that he will get back into the private sector after having granted some valuable patents to some of his friends, hopefully landing a great consulting gig or job with them? Or just start his own?
    - pdonis 6y ago
      > They are asking specifically what the judge will get out of it. To me this is a red herring. What this judge is doing has all kinds of problems regardless of what his motive is. Even if the judge thinks he's doing it for the good of the legal system and won't accept any personal gain at all, he's still wrong and he should be stopped.
sida 6y ago
What is the judge's motivation to advertise for patent trolls to come to his court?
- renewiltord 6y ago
  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 6y ago
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?article=5053&context=ylj 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.)
- jrumbut 6y ago
  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-election-of-the-doge-of-the-republic-of-venice/ 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.
  - searchableguy 6y ago
    Wouldn't a randomizer help with changing incentives? The default assumption should be that people are corrupt given the right incentive which in this case shows. It's not perfect but it's better that someone is not certain that they are able to attract certain cases for future.
_kurh 6y ago
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 6y ago
  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?
- pavon 6y ago
josaka 6y ago
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 6y ago
  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.
  - rubidium 6y ago
    “ Patent law could benefit from major reform to eliminate abusive lawsuits and decrease transactional costs of enforcement and defense.” No one disagrees. But that reform should come from legislation, not judges. Judges are supposed to apply the law as written to the best of their abilities.
AnimalMuppet 6y ago
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.
dielll 6y ago
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
- srtjstjsj 6y ago
  > why the hell are Americans so litigious Because the government doesn't proactively enforce civil/corporate law, instead waiting for a law suit. Because we don't have social healthcare, so suing for liability is the main way to pay for injuries. Because USA culture is that individuals have rights that should not be trampled upon by the State or other people. Because the US Constitution created a judiciary system independent of the executive, where individuals can seek justice even when the executive ignores them.
  - supernova87a 6y ago
    No, this isn't really accurate. Most cases aren't about fundamental Constitutional issues that you can bring before a court by right. There are so many lawsuits because Congress has given the right to sue over so many laws. Or, put another way, created laws and regulations whose content and loopholes enable people to sue under those terms. If the laws were absolutely clear and drew bright lines for many things, there would not be the ambiguity to sue. I think it is generally a product of our own creation. Yes there are more diverse commercial interests and entities now than 40 years ago, but Congress has equally generated the complexity you see. The courts are absolutely drowning under this load. Effectively, the likelihood of your case being heard is now low enough that settlement is likely how the matter is going to be resolved.
- adventured 6y ago
  > why the hell are Americans so litigious You admit to not knowing much about the US on this matter, then proclaim extraordinary knowledge on the subject. The answer is, they're not by and large. There are specific sections of the US that are highly litigious however. The majority of Americans are rarely litigious, which shows up in the numbers every time someone does an exhaustive study of who is filing lawsuits in the US. http://www.buffalo.edu/ubnow/stories/2017/01/engel-book-litigious-america.html http://www.buffalo.edu/ubnow/stories/2017/01/engel-book-liti... https://www.theguardian.com/commentisfree/2013/oct/24/america-litigious-society-myth https://www.theguardian.com/commentisfree/2013/oct/24/americ...
deleted 6y ago
[deleted]
cletus 6y ago
There's no better measure of how far out of line this guy is than the fact that the US Court of Appeals for the Federal Circuit, which is about as pro-patent holder as any court can get, so much so that the Supreme Court has routinely been reversing its ruling... is overturning this guy's rulings. I actually don't understand what this guy's motivation is, however. The article doesn't really address it. I kind of get the sense he is a True Believer [tm] in patent holder "rights" and is using his position to advance that view. It's kind of scary that a big part of why patent litigation is so out of hand comes down to just 2-3 people who happen to be Federal judges. I really thought by now that this situation would've been so out of hand that the Supreme Court would've been forced to put a stop to it but no, the Supreme Court has done everything it can to avoid taking a stand on patent issues despite the glaring evidence that they need to. It's kind of disappointing that the Oracle Google case wasn't decided in the last term when RBG sat on the bench. Who knows what will happen now? And yes I know that's a copyright case (now) not a patent case but it fits into the whole IP nonsense. Other commenters have mentioned random assignment of judges. That already happens. In this district this just happens to be the only guy. In the Eastern District at a certain time there were two judges. Patent holders preferred one. I remember reading that they would employ a law firm that employed the son of the judge they didn't like so he'd have recuse himself and they could get the judge they want. This forum shopping crap has to stop.
spuddie 6y ago
I guess I will remove my lurker hat as I am familiar with this situation. The article leaves out a lot of context. The Western District of Texas includes Waco, Austin, and other areas. It's worth understanding the history of patent cases in this district to understand what partially motivated Albright to "advertise" his court to patent litigants. Prior to Albright's appointment, none of the judges in the Western District wanted patent cases. They openly and repeatedly said so. Patent cases were unreasonably slow in the district, and the judges essentially said "we don't like or want these types of cases." As a former patent litigator, Albright wanted to make clear that the Western District now has a judge who welcomes those cases, as opposed to shunning them. It's also his area of expertise, and attorneys frequently complain that most judges are ill-equipped to conduct patent cases due to the specialization of that area the law. The notion that Albright is a "patent troll" friend is incorrect. The clients he has represented are all there in public court filings. He has represented big tech (including Facebook). He has represented pharma companies. He has represented small companies. He has been on both the plaintiff and defendant side. I believe that most attorneys do not consider him to be pro "patent troll." Apple is the primary litigant that wants to transfer out of Texas courts. The judge is only part of the reason. They also really want California juries.
- jojobas 6y ago
  Can a judge reject a case because he doesn't "want" it? It's their job after all.
  - hayksaakian 6y ago
    They can pre-empt being assigned in the first place to avoid the situation.
  - xeromal 6y ago
    The supreme court does it all the time so I assume the lower courts can too
  - silexia 6y ago
    They should not legally be allowed to... But unfortunately attorneys get to decide what is legal and what is not.
dpmdpm 6y ago
Albright's very first patent trial just started today: MV3 Partners v Roku Inc.
- severine 6y ago
  Some background on that case: https://www.kasowitz.com/media/3671/12-3-2019_upstream-battle-by-jonathan-k-waldrop-intellectual-property.pdf https://www.kasowitz.com/media/3671/12-3-2019_upstream-battl...
bdowling 6y ago
Quotes from Judge Albright himself: “I didn’t come to this job to retire,” Albright said. “I came to this job and I took this job in Waco because I thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation, and it has proven to be just that." [0] “There is nothing I enjoy more than working on patent cases. I think, by and large, the lawyers are exceptional and the issues before me are always intellectually challenging. I couldn’t imagine a better docket than what I’ve got. I feel unbelievably lucky.” [1] “When people file here, I think they can feel comfortable with my 20 years in patent experience and [law clerk Josh Yi's] 10 years as a lawyer and his technical background that they will get a fair process with someone who knows what he is doing,” Albright said. [2] A quote about Judge Albright from David Henry, who teaches patent law and litigation at Baylor University Law School and knows Judge Albright: “Judge Albright is a person who is very, very principle-driven,” he said. “He takes the position and the social responsibility very, very seriously. It’s something he thinks about all the time. I’ve heard him say on numerous occasions, ‘I want to get this right.’ [3] “And one aspect of getting it right for him is giving patent litigants another option for taking or defending their patent cases in a forum with someone who truly is an expert in that field.” [4] [0] https://wacotrib.com/news/local/waco-becoming-hotbed-for-intellectual-property-cases-with-new-federal-judge/article_0bcd75b0-07c5-5e70-b371-b20e059a3717.html https://wacotrib.com/news/local/waco-becoming-hotbed-for-int... [1] Id. [2] Id. [3] Id. [4] Id.
- _Microft 6y ago
  If you're referring to the same source more than once, you can reuse a footnote to avoid clutter.
jariel 6y ago
There needs to be a national IP court for this with highly qualified individuals, with access to congress, USPTO, FDC etc. so they can harmonize laws, regulations etc..
kimjongtrill 6y ago
Is everyone in this country running some type of grift?
zoobab 6y ago
That's what is waiting us in Europe with the UPC. A court full of patent litigators/attorneys turned into technical judges.

381 points by 8ytecoder 6y ago

kps 6y ago

What broken system enables this sort of corruption, and why hasn't it been fixed?

macintux 6y ago
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 6y ago
  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.
  - SketchySeaBeast 6y ago
    > 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 6y ago
      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.
      - SketchySeaBeast 6y ago
        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.
        avmich 6y ago
        > Accountable to the law? Absolutely The country is the country of people, they establish all the mechanisms. Including law. The "country of people" legally is written in founding papers, but here we're questioning on the level of founding papers. Constitution offers a mechanism to change it as a whole; but there currently are other mechanisms too. Working judges impeachment should perhaps be practical - or it should be clear why not.
      - munk-a 6y ago
        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.
        srtjstjsj 6y ago
        Huh? What lawsuits? There is an impeachment trial and that's it.
    - brundolf 6y ago
      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.
      - srtjstjsj 6y ago
        > through sheer chance It wasn't sheer chance. It was Senate Majority Leader Mitch Mcconnell subverting the Constitution with a coup, refusing to even let the Senate consider whether to approve Presidemt Obama's nominations. And now that Mcconnell has eliminated the principle of upholding the Constitution, we can expect the same from every Senate for at least a generation, and judges will only be appointed when the President and the Senate are the same party.
  - tonyedgecombe 6y ago
    Can you imagine the discourse if they were trying to get elected.
  - Analemma_ 6y ago
    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.
    - avmich 6y ago
      > 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 6y ago
        > 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 6y ago
        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 6y ago
    Considering the quality of presidential candidates recently, I don't think making Judge an elected position would decrease the political influence over the courts.
  - smnrchrds 6y ago
    > 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-deathpenalty-judges/ https://www.reuters.com/investigates/special-report/usa-deat...
    - hinkley 6y ago
      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.
  - jcranmer 6y ago
    I take it that you do not live in a state that elects its judges.
  - munk-a 6y ago
    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.
  - MaxBarraclough 6y ago
    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-the-government-and-the-constitution/jud-acc-ind/jud-appts/ https://www.judiciary.uk/about-the-judiciary/the-judiciary-t... https://en.wikipedia.org/wiki/High_Court_judge_(England_and_Wales)#Appointment https://en.wikipedia.org/wiki/High_Court_judge_(England_and_...
    - brundolf 6y ago
      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.
- paultopia 6y ago
  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 6y ago
Two words: regulatory capture
gtvwill 6y ago
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.

dvt 6y ago

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.

_kurh 6y ago
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 6y ago
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tzs 6y ago
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 6y ago
  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.

beervirus 6y ago

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-intellectual-property-cases-with-new-federal-judge/article_0bcd75b0-07c5-5e70-b371-b20e059a3717.html https://wacotrib.com/news/local/waco-becoming-hotbed-for-int...

burkaman 6y ago
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 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3668514
- beervirus 6y ago
  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 6y ago
    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 6y ago
      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.

dmurray 6y ago

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 6y ago
This is exactly my question. Why? Do they get paid per case or something? Are there kickbacks?
salawat 6y ago
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.
- tehwebguy 6y ago
  They are asking specifically what the judge will get out of it. I think you are implying that he will get back into the private sector after having granted some valuable patents to some of his friends, hopefully landing a great consulting gig or job with them? Or just start his own?
  - pdonis 6y ago
    > They are asking specifically what the judge will get out of it. To me this is a red herring. What this judge is doing has all kinds of problems regardless of what his motive is. Even if the judge thinks he's doing it for the good of the legal system and won't accept any personal gain at all, he's still wrong and he should be stopped.

sida 6y ago

What is the judge's motivation to advertise for patent trolls to come to his court?

renewiltord 6y ago
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 6y ago

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?article=5053&context=ylj 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.)

jrumbut 6y ago
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-election-of-the-doge-of-the-republic-of-venice/ 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.
- searchableguy 6y ago
  Wouldn't a randomizer help with changing incentives? The default assumption should be that people are corrupt given the right incentive which in this case shows. It's not perfect but it's better that someone is not certain that they are able to attract certain cases for future.

_kurh 6y ago

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 6y ago
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?
pavon 6y ago

josaka 6y ago

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 6y ago
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.
- rubidium 6y ago
  “ Patent law could benefit from major reform to eliminate abusive lawsuits and decrease transactional costs of enforcement and defense.” No one disagrees. But that reform should come from legislation, not judges. Judges are supposed to apply the law as written to the best of their abilities.

AnimalMuppet 6y ago

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.

dielll 6y ago

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

srtjstjsj 6y ago
> why the hell are Americans so litigious Because the government doesn't proactively enforce civil/corporate law, instead waiting for a law suit. Because we don't have social healthcare, so suing for liability is the main way to pay for injuries. Because USA culture is that individuals have rights that should not be trampled upon by the State or other people. Because the US Constitution created a judiciary system independent of the executive, where individuals can seek justice even when the executive ignores them.
- supernova87a 6y ago
  No, this isn't really accurate. Most cases aren't about fundamental Constitutional issues that you can bring before a court by right. There are so many lawsuits because Congress has given the right to sue over so many laws. Or, put another way, created laws and regulations whose content and loopholes enable people to sue under those terms. If the laws were absolutely clear and drew bright lines for many things, there would not be the ambiguity to sue. I think it is generally a product of our own creation. Yes there are more diverse commercial interests and entities now than 40 years ago, but Congress has equally generated the complexity you see. The courts are absolutely drowning under this load. Effectively, the likelihood of your case being heard is now low enough that settlement is likely how the matter is going to be resolved.
adventured 6y ago
> why the hell are Americans so litigious You admit to not knowing much about the US on this matter, then proclaim extraordinary knowledge on the subject. The answer is, they're not by and large. There are specific sections of the US that are highly litigious however. The majority of Americans are rarely litigious, which shows up in the numbers every time someone does an exhaustive study of who is filing lawsuits in the US. http://www.buffalo.edu/ubnow/stories/2017/01/engel-book-litigious-america.html http://www.buffalo.edu/ubnow/stories/2017/01/engel-book-liti... https://www.theguardian.com/commentisfree/2013/oct/24/america-litigious-society-myth https://www.theguardian.com/commentisfree/2013/oct/24/americ...

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cletus 6y ago

There's no better measure of how far out of line this guy is than the fact that the US Court of Appeals for the Federal Circuit, which is about as pro-patent holder as any court can get, so much so that the Supreme Court has routinely been reversing its ruling... is overturning this guy's rulings. I actually don't understand what this guy's motivation is, however. The article doesn't really address it. I kind of get the sense he is a True Believer [tm] in patent holder "rights" and is using his position to advance that view. It's kind of scary that a big part of why patent litigation is so out of hand comes down to just 2-3 people who happen to be Federal judges. I really thought by now that this situation would've been so out of hand that the Supreme Court would've been forced to put a stop to it but no, the Supreme Court has done everything it can to avoid taking a stand on patent issues despite the glaring evidence that they need to. It's kind of disappointing that the Oracle Google case wasn't decided in the last term when RBG sat on the bench. Who knows what will happen now? And yes I know that's a copyright case (now) not a patent case but it fits into the whole IP nonsense. Other commenters have mentioned random assignment of judges. That already happens. In this district this just happens to be the only guy. In the Eastern District at a certain time there were two judges. Patent holders preferred one. I remember reading that they would employ a law firm that employed the son of the judge they didn't like so he'd have recuse himself and they could get the judge they want. This forum shopping crap has to stop.

spuddie 6y ago

I guess I will remove my lurker hat as I am familiar with this situation. The article leaves out a lot of context. The Western District of Texas includes Waco, Austin, and other areas. It's worth understanding the history of patent cases in this district to understand what partially motivated Albright to "advertise" his court to patent litigants. Prior to Albright's appointment, none of the judges in the Western District wanted patent cases. They openly and repeatedly said so. Patent cases were unreasonably slow in the district, and the judges essentially said "we don't like or want these types of cases." As a former patent litigator, Albright wanted to make clear that the Western District now has a judge who welcomes those cases, as opposed to shunning them. It's also his area of expertise, and attorneys frequently complain that most judges are ill-equipped to conduct patent cases due to the specialization of that area the law. The notion that Albright is a "patent troll" friend is incorrect. The clients he has represented are all there in public court filings. He has represented big tech (including Facebook). He has represented pharma companies. He has represented small companies. He has been on both the plaintiff and defendant side. I believe that most attorneys do not consider him to be pro "patent troll." Apple is the primary litigant that wants to transfer out of Texas courts. The judge is only part of the reason. They also really want California juries.

jojobas 6y ago
Can a judge reject a case because he doesn't "want" it? It's their job after all.
- hayksaakian 6y ago
  They can pre-empt being assigned in the first place to avoid the situation.
- xeromal 6y ago
  The supreme court does it all the time so I assume the lower courts can too
- silexia 6y ago
  They should not legally be allowed to... But unfortunately attorneys get to decide what is legal and what is not.

dpmdpm 6y ago

Albright's very first patent trial just started today: MV3 Partners v Roku Inc.

severine 6y ago
Some background on that case: https://www.kasowitz.com/media/3671/12-3-2019_upstream-battle-by-jonathan-k-waldrop-intellectual-property.pdf https://www.kasowitz.com/media/3671/12-3-2019_upstream-battl...

bdowling 6y ago

Quotes from Judge Albright himself: “I didn’t come to this job to retire,” Albright said. “I came to this job and I took this job in Waco because I thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation, and it has proven to be just that." [0] “There is nothing I enjoy more than working on patent cases. I think, by and large, the lawyers are exceptional and the issues before me are always intellectually challenging. I couldn’t imagine a better docket than what I’ve got. I feel unbelievably lucky.” [1] “When people file here, I think they can feel comfortable with my 20 years in patent experience and [law clerk Josh Yi's] 10 years as a lawyer and his technical background that they will get a fair process with someone who knows what he is doing,” Albright said. [2] A quote about Judge Albright from David Henry, who teaches patent law and litigation at Baylor University Law School and knows Judge Albright: “Judge Albright is a person who is very, very principle-driven,” he said. “He takes the position and the social responsibility very, very seriously. It’s something he thinks about all the time. I’ve heard him say on numerous occasions, ‘I want to get this right.’ [3] “And one aspect of getting it right for him is giving patent litigants another option for taking or defending their patent cases in a forum with someone who truly is an expert in that field.” [4] [0] https://wacotrib.com/news/local/waco-becoming-hotbed-for-intellectual-property-cases-with-new-federal-judge/article_0bcd75b0-07c5-5e70-b371-b20e059a3717.html https://wacotrib.com/news/local/waco-becoming-hotbed-for-int... [1] Id. [2] Id. [3] Id. [4] Id.

_Microft 6y ago
If you're referring to the same source more than once, you can reuse a footnote to avoid clutter.

jariel 6y ago

There needs to be a national IP court for this with highly qualified individuals, with access to congress, USPTO, FDC etc. so they can harmonize laws, regulations etc..

kimjongtrill 6y ago

Is everyone in this country running some type of grift?

zoobab 6y ago

That's what is waiting us in Europe with the UPC. A court full of patent litigators/attorneys turned into technical judges.