Advisory Opinions - The Problem With Multidistrict Litigation

Episode Date: February 6, 2024

Sarah and David invite District Judge Vince Chhabria on the pod to explain the state of multidistrict litigation and answer the question: Why does he listen to Advisory Opinions? The Agenda: —Justice Breyer’s jurisprudence —Judging vs. personal value judgments —David’s cringe a cappella group name —Constitutionality of magistrate judges —How to fix forum shopping —MDLs, explained —The pros and cons of MDLs —How to become a judge —Judge Chhabria’s clerk hiring process Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgerd, that's David. And boy, do we have a treat for you guys. It turns out this podcast has had a fairy godmother this whole time. Well, fairy godfather, actually. And we're going to talk to him. It's going to be such a treat. He's a district court judge in the northern district of San Francisco, a Obama appointee, briar, briar clerk. Y'all have been asking for it. And it turned out he was there the whole time. But before we get to him, real quick, just a little housekeeping. One, we are not going to have our normal Thursday morning episode of Advisory Opinions because

the Supreme Court is hearing argument in the Colorado 14th Amendment Section 3 disqualification case that morning. So instead, we will do an emergency pod turnaround right after the argument. We will tape and we will try to get it out to you Thursday night as quickly as we can. Also housekeeping, lots of filings swirling back and forth in the Fannie Willis, Georgia effort and the trial of Donald Trump, other January 6th related folks. We're not going to talk about that today. There's also a lot of factual disputes here.

And I think just like we need a timeout until the hearings happen. David, do you agree with that? I agree with that. There's so much swirling. I've had so many people ask me, what do you think about this? And my answer is the facts are in such a state of flux. And it all turns on the facts. Yeah, it all turns on the facts.

Absolutely. And at this point now, basically one side is lying and has lied to the court, like is misrepresented to the court. So we got to wait and let that sort out before we waste y'all's time on it. Last thing, we did get requests to talk about that Florida DeSantis versus Disney case. We hear you. We'll get to it eventually.

Or maybe we won't, but we probably will. We probably will, yes. But we're not going to this week, let's be honest. Yep. And lastly, I know I told you guys you had to binge American Nightmare, and then we didn't talk about it, and we're not going to get to talk about it today, and we're not going to get to talk about it for the next episode because of the Colorado argument. I feel horrible, but just know I haven't forgotten,

and we absolutely are going to talk about it. And I can't promise anymore that it'll be worth it because now the buildup is too big. No, it's going to be worth it. It's going to be worth it. Yeah, yeah, yeah. I mean, there's a pretty big reveal coming at the end of a show that had a pretty big reveal. And it's my fault. It's my fault. Let's just cut to the chase, Sarah. It's my fault. With that, I'm so excited to introduce y'all to Judge Chabria.

First of all, welcome, Judge Chabria, and thank you for your repeated kindnesses to this podcast. Well, thank you for having me. I'm very happy to be here. I'm not sure what kindnesses you're referring to, but I feel indebted to you. I learn a lot from you. I've been listening to you for a long time, and I'm happy to be here. Well, the first kindness is that, thanks to you, I will be interviewing Justice Breyer about his new book in a couple months at an amazing event happening in San Francisco. That's right.

This is City Arts and Lectures. It's a program that we've had here in San Francisco for years, fireside chat format. And Justice Breyer has his new book coming out called Reading the Constitution, Why I Chose Pragmatism, Not Textualism. And the last time Justice Breyer was on the stage at City Arts and Lectures, I interviewed him. I'm still exhausted from that. And they wanted somebody different. So I thought, you know, Justice Breyer used to do his roadshow with

Justice Scalia, where they would debate back and forth about constitutional interpretation. And I know that he always liked that. And I thought, well, maybe we should get somebody to interview him who might take a little bit of a different perspective on constitutional interpretation. I know just the person. And so I reached out to you, Sarah, and you graciously agreed to do it. So that's the first kindness. The second kindness is that there is about to be a piece coming out, actually, probably tomorrow. This podcast will drop on Tuesday morning. On Wednesday morning, we're expecting a piece from The New Yorker, all about this podcast.

And you kindly actually talked to the reporter to say nice things about us. I did. Well, maybe. I actually don't know what you said, so I don't know if they're nice. This could be the beginning or the end of a beautiful friendship. We'll see. Of the fairy godmothership. I think most of the things I said were nice. I think they were looking for

people who maybe come from a different perspective or not as conservative as you all. And they wanted to know why I listen to the podcast. And I thought maybe I would tell you now. I'm curious. I'm such a devoted listener to your podcast. I was reflecting on it before I came on. or to your podcast. I was reflecting on it before I came on. When I lived in Washington, I used to have conservative lawyer friends. And I would go play golf with them, go out to dinner with them, whatever, and have these great conversations with them about the law. We would trade perspectives. My perspective would usually be right. Theirs would usually be wrong. perspective would usually be right. Theirs would usually be wrong,

but I always learned from them. And I really value those conversations. We don't really have conservative lawyers in San Francisco. And so when I discovered your podcast, I loved it. It hearkened me back to those kinds of conversations I used to have when I lived in DC with my conservative lawyer friends. And now you are my conservative lawyer friends. And then of course, this is the third kindness is you agreeing to come on this podcast.

And we've got a lot to cover. I think I want to start right where you just left off, which is you're actually an OG Breyer Breyer clerk. And many people won't even know what that means to be a Breyer Breyer clerk, but you could not be more steeped in the best of the liberal intellectual tradition. And we get a lot of questions about what's the alternative to originalism and textualism. And we've tried to explain it, but frankly, that's ridiculous for us to try to explain it. So will you talk a little bit about how you came up through this world and how you would describe maybe Justice Breyer's jurisprudence, either as he would describe it or as you would describe it differently from how he would describe it?

Sure. I mean, first coming up through the Breyer world. So I started by clerking for his brother, District Judge Charles Breyer, who is now my colleague on the Northern District of California. So cool. He's down the hall for me. He comes by every day to check up and make sure I'm not screwing up something. It's really, I mean, it's sort of the highlight of my career to be colleagues with this guy I clerked for more than 20 years ago.

guy I clerked for more than 20 years ago. So immediately after graduation from Berkeley Law, I clerked for Chuck Breyer. And then the following year, I clerked for Judge James Browning on the Ninth Circuit. And Justice Breyer hired me. It's interesting. He would not hire me the year that I was clerking for Chuck Breyer. I'm not sure he was willing to just take his brother's word for it. But at the end of my Browning clerkship on the Ninth Circuit, Justice Breyer agreed to hire me. So I got to clerk for both Breyer brothers. As far as method of constitutional interpretation, I mean, I don't want to get into it too much because I don't want to spoil your discussion with Justice Breyer in May that I'm sure everyone will want to listen to.

You know, what I can say is that I think Justice Breyer has often said to people like Justice Scalia, look, there's not actually a huge difference between us. Of course, I will start with the text of the constitutional provision. Of course, I care what the founders thought. And I think he would even say, founders thought. And I think he would even say, you know, I would also be interested in learning what people back then thought a particular word meant, right? History and tradition. But I think what Justice Breyer would say is that the law runs out sometimes when you're limiting yourself to looking at that stuff. Sometimes that is not going to give you a good answer to the interpretive question that you're tackling. And it is important in those circumstances to look at other stuff. Obviously, history, legislative history in the case of a statute or the history of

the drafting of a constitutional provision. And he would say consequences, that it's important to consider the consequences of your analysis and the consequences of your decision for our democracy, for the public officials who are trying to serve the people who elected them to serve, and overall for our system. And we have to be pragmatic about the rulings that we're issuing. They have to work in modern-day society and in our modern-day government. And so I think that's, you know, a lot of times he would say I might come out the same way as a judge who is limiting themselves to the textualist historical approach, but there are times that that's not enough. You know, one thing that is interesting to me, because you started that response by talking about the text, and that's interesting to me because if you're going to have the stereotypical conservative response to more progressive jurisprudence, it would be, they don't care about the text.

to text. And that's sort of this caricatured critique. And there's a caricatured critique of conservative jurisprudence as well. But the caricatured critique of liberal jurisprudence, more liberal jurisprudence is text. Who cares about text? What's, what have we got? You know, what, what's the consequence? What's the outcome here? Could you talk more about that interplay between text and consequences? Because we do see that in the originalist side of the house as well. So you do see, as Justice Alito articulated in a Wall Street Journal piece, that there are some of the folks in the originalist camp he calls consequentialists. So what would be the difference between a Breyer and a Roberts? Because Roberts, I guess, would be sort of the stereotype of the conservative consequentialist.

So what would be sort of the stereotype of the conservative consequentialist. So what would be the distinction there? Well, first of all, on the issue of they don't care about the text, I think that if you look back at some rulings from 50 years ago, you will see decisions that make you wonder, you will see decisions that make you wonder, did they care about the text? So I do understand where that criticism comes from. But as, of course, as Justice Kagan said, in the wake of Justice Scalia's passing, we're all textualists now, right? We all focus more on the text. And I think that's a good thing. I think that, you know, we got away from that a little bit too much. On sort of the difference between Roberts and Breyer, I think part of it, honestly, is just, I don't know if they would say this, I think they just bring different set of values to their job. I think every judge

brings a set of values to their job and brings those values to bear on the decisions they make. One of the problems I have with the textualists, the sort of hardcore textualists, is that they make it sound as if their analysis does not involve bringing their own values to bear on their decision-making. And I just think that's unrealistic. Judges are human beings. Judges do bring their values to bear on their decision-making, and inevitably, judges are going to be thinking about consequences. And so maybe, you know, part of the difference between a Roberts and a Breyer is just that they are thinking about consequences, but they bring different value judgments to that analysis. I think that's such an interesting point about the value judgments. And this case is probably used too much for this conversation, but on a podcast

like this, I think it's worth bringing up the Raish case, right? You have Justice Scalia on two things, right? The Commerce Clause and the war on drugs. And those two values, both of which he has, are going to come into conflict with one another in this Raish case about whether basically an individual growing marijuana for their own medical purpose in California under California state law nevertheless is, you know is whether that state law can stand. And Justice Scalia says, no, the drugs win out over the hatred of the Commerce Clause expansion. And I think that's such a good example where, yep, textualism's there, but you know what really explains the outcome of that case? Values more than textualism.

David? That's a great example. You know, whenever you say Scalia and drugs, it gets triggering for me because of Employment Division v. Smith. Yeah, another similar one. Which to this day, I don't know, Judge, if you think this would agree with this, but to this day, I don't think Employment Division v. Smith comes out the way it was or the way it came out if the dispute on religious liberty involved anything other than a hallucinogenic drug. And don't forget bong hits for Jesus. That's student speech versus drugs.

So, yeah. And it's always the war on drugs win. It's the exclusionary and the no knock raids i mean anyway i'm sorry judge i'm sorry you had to say no i uh it's nice to see it as opposed to just hear it which is usually what's happening um but i think you know i i think that's right i think that inevitably judges are going to be bringing value judgments, and it's better if we're going to be honest about that and honest about that in our legal analysis. So, you know, that's not to say, right, that, you know, judges can do whatever they want. And going

back to Justice Breyer, and he's very emphatic about that, right, this is not to say, just because you're thinking about consequences, just because you're thinking about coming up with a pragmatic result doesn't mean you can do whatever you want. There is still a judicial lane, right? And you have to stay within your lane. But on the other hand, there is room to swerve within that lane, depending on the value judgments that you're bringing to your analysis. And that's always been the case, right? We've always had disagreements in the law. We've always had disagreements about legal analysis. We always will. And, you know, judges are human beings. That's why we have these big confirmation fights. And, you know, so I guess I think, and I'm sort of bleeding away from stuff that Justice Breyer says and more into stuff that I say, but, you know, I think we would be better off being honest and not saying, you know, I think we would be better off acknowledging that everybody, including the

hardcore textualists, are bringing value judgments to their work. And let's acknowledge that it's okay to bring value judgments to your work and focus on, you know, making sure we stay within our lane, even as we're swerving within it. Hardcore textualist is just a great term. And I don't think we say it enough on this podcast, David. So let's just go ahead and get that one locked into the vocab. And it's got to be the name of like a FedSoc jam band at some point. The hardcore textualist. The previous best legal pun was my law school Christian fellowship had an a cappella group

and it was called Sarah Cross Examination. Oh, no. Yes. No, judge. No, don't put your hand in your hands. Wow, David. Also, I mean, it's cringe all the way down. The name is cringe that you had a law school a cappella group is cringe that it was a law school Christian acapella group, which I'm presuming was doing like sort of that modern Christian pop stuff that is pretty bad. I mean, it's just cringe. It's turtles all the way down, but it's that it's cringe all the way down. But the question is here, is it more cringe or less cringe that I couldn't even make the acapella team? I mean, you saved yourself there. That's why you were able to get married. They literally made me try out. They said, sing Amazing Grace.

And I was like, no, you don't want me. I promise. No, they go, sing it. Just let's see. And I started singing, Sarah, and halfway through he said, you're exactly right. We do not want you.

started singing, Sarah, and halfway through, he said, you're exactly right. We do not want you. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy.

Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code Use code advisory at checkout to save. Terms and conditions apply. Let's take a quick detour then because I think the thing that people will think is pretty cringe, similar cringe. I was in a magical choir in high school where we dressed up in Renaissance attire and did magical era pieces in our get-ups also acapella i do not see one thing cringe about that the only thing that would make it better is if you play dungeons and dragons between shows you get to do the dances too the like period dances that you'll see in like movies and stuff

all right judge your turn i would i would cringe i would cringe but but I don't even know what any of that means. He's too cool. You do look like you were probably pretty cool in high school. Were you a cool guy in high school? No, I was not cool in high school. I went to UC Santa Cruz. I'm a banana slug, and I sort of came out of my shell. So to speak.

Like slugs do. My son is a banana slug and I sort of came out of my shell. So to speak, like slugs do. My son is a banana slug. He's gradually, he's finishing this quarter. And yeah, he's one of the mighty fighting banana slugs. I love the saying you see everywhere in the bookstore, the student bookstore, no known predators. That is right. It's fantastic.

Oh, that's so cool. Does he like it there? Loves it. Loves it. He transferred from the University of Tennessee to UC Santa Cruz going about as far as you can geographically, ideologically

and just absolutely loved his time there. Oh, good for him. I felt the same way. What's the cringe, embarrassing thing that you have been a part of, Judge?

He can't even think of one, you guys. We're going to never get another judge on this podcast if we get in this habit. Confessions. Yeah. Article 3 Confessions is a whole different podcast

we'll be doing. I don't mind is a whole different podcast. What are you doing? I don't mind making a confession, but I don't, I honestly, I mean, I like everything. I feel like we need to ask our kids. That your kids will have all sorts of things that you do that are cringe. I have started adopting their language a little bit, like mid. What did I say the other day? They really cringed when I said, oh, I said, oh, that's facts. Instead of, oh, I agree with you.

And my daughter just looked at me and said, don't ever say that again. I think, Judge, you should work the term sus into a court opinion. Totally agree. I sort of feel like sus has, like we all use sus now, don't we? All I know is when I do, my kids almost physically attack me. So I think it's out of bounds. I want to get one of those t-shirts that they now sell on Etsy. And it says, mommy mom bruh

and that should make them cringe so hot all right we're back on track here because we've talked about judicial philosophy but as a district judge you don't do a whole lot of judicial philosophizing that's just not really what the day-to-day of your world looks like. You're not appellate judges who get to sit around and spend their 12 hours a day thinking and writing and closing their eyes as they ponder. That's like the opposite of your daily world. Well, the discussion we just had about judicial philosophy is the longest discussion I've had

about judicial philosophy in 10 years. Wow. And that may be reflected in the quality of my comments, but you're absolutely right, right? I remember talking a while ago with Amul Tabar about this. What do you say when people ask you, what is your judicial philosophy? And Amul said, well, I know what district you say when people ask you, what is your judicial philosophy? And Amul said, well, I know what district judges say. They say, judicial philosophy? I'm just trying to solve problems and move the cases along. And I think that captures it exactly right, right? We don't

have time to think about judicial philosophy. We are much more in the business of trying to solve problems, make sure the cases keep moving along, and really kind of serve the public by managing our docket properly. So to give you a sense, I have about 200 pending civil cases at one time. I have about 50 pending criminal cases at one time. That doesn't include, by the way, the MDL cases, which I know we'll get to in a little bit. I have a few thousand pending MDL cases. it's these you know roughly 250 cases and they're all different kinds of cases and you we're dealing with them from the time the complaint is filed or the indictment is issued until the time they go to trial and so what is my what does my week look like every monday i have a meeting with my law clerks, and we talk at length about the cases that are being heard that week. I usually have not started reading the papers yet, so the clerks will educate me about the cases. And then throughout the week, I'll start reading

the briefs, reading the case law. Then on Wednesday, we have the criminal calendar. There'll be a hearing on any substantive criminal motions that we have in addition to sentencings and guilty pleas. Then on Thursday, we have the civil motion calendar where we will have anywhere from three to eight or nine substantive civil motions that will be argued. And then on Friday, we have the case management calendar. And there will usually be 10 or 15 civil cases on the case management calendar. And that'll just be me getting together with the lawyers talking about how the case is going, how do we need to schedule it? Is there anything we can do to help you move the case

along faster, et cetera, et cetera. And then the following week, the whole thing starts again. So you're deciding cases really fast. You're reading a lot of stuff and you've got to learn how to read it quickly and get to the important stuff and gloss over the unimportant stuff. it quickly and get to the important stuff and gloss over the unimportant stuff. And, you know, you have a real responsibility to move these cases along. And so there really isn't a lot of time for philosophizing or writing books or anything like that. But, you know, it's interesting. Every now and then, though, you get a case that is one of the major cases in the country, you know, that it comes in the door, it's assigned to you. And I've always wondered when you're a district court judge and you've got this just incredible caseload that you outlined, you've got you've got to push through a lot of criminal cases. You've got all of these civil cases. You've got the multi-district litigation that we'll get to. And then in comes

one of these cases that is a national news kind of case that's dealing with interesting issues of constitutional law, statutory construction, et cetera. How much of that is a stop the presses moment, we have to deal with this big, enormous national controversy versus it's just got to get in the queue with everything else because while this case has a lot of attention, these other cases matter a lot to these litigants. And so what's the balance there? Because you have to know that, you know, that you've got eyes on you and all of a sudden sort of what you're going to be doing next might be national news. How does all of that break into the routine? Yeah, that's a great question. It's very hard to juggle things when something like

that comes up. And I think the answer is, a lot of times it is a stop the presses moment. And you literally shove everything else aside. And you almost become like an appellate judge who dive, you know, takes a deep dive. Of course, you've got to do it on a much faster track usually than the appellate judges do. But you take a deep dive and, you know, you do your best to think yourself into the ground on the issue. That's actually one of the great things about the Northern District of California, right, is that we get a number of cases like that. I mean, it was even more true during the Trump administration where, you know, our district was perceived as a friendly venue and a lot of the

cases got filed here. But even aside from that, we have these, interesting cases coming out of Silicon Valley that are sometimes emergencies. We have local governments doing creative, experimental things that often get challenged, and often that is an emergency. So we get it a fair amount, and it's a good thing. I mean, I enjoy it. It's one of the things that I love about the job, but yes, it's very disruptive. And the answer to your question is you do put everything aside and justice is delayed on all of the other stuff you're working on. Um, maybe for a few days or a week or more while you're dealing with this big, massive issue that's come in. Can we take a little detour here? Because I've got just like a couple little questions.

One, I'm sure you deeply respect and love all of the magistrate judges in your district. So this is not a question on their quality as human beings or their intelligence. However, we've had conversations on this podcast about the constitutionality of bankruptcy judges and magistrate judges, these Article I judges. Would you actually just describe a little bit about what magistrate judges do on and with your caseload?

And if you'd like to discuss whether they're constitutional, feel free. Well, I will take a consequentialist approach to whether they're constitutional. The answer is yes, because we need them. So as I think everybody knows, the district judges are nominated by the president, confirmed by the Senate. The magistrate judges are hired by the district judges, right? We have a judicial selection committee that takes applications and people apply to be magistrate judges and the committee will send us a slate of candidates and we'll interview the candidates and pick somebody. And we do it collectively as a court. The role of the magistrate judge varies greatly depending on where you are in the country, okay? So in some districts,

the role of the magistrate judge is quite limited. They will handle discovery disputes in a case that's assigned to a district judge. They might conduct some settlement conferences to try to help district judges get their cases settled. And they will sometimes do something called a report and recommendation to a district judge. So there will be a referral from the district judge to the magistrate judge to consider a particular motion. Might even be like a motion for summary judgment or something like that. And then the magistrate judge will read the briefs and hear argument and then write not a judicial decision, but a report and recommendation that looks very

much like a judicial decision, but is a recommendation to the district judge. And then the district judge decides whether to adopt that report and recommendation as a ruling or to rule differently. I think what I just described to you is kind of the typical role of the magistrate judge in the federal courts in most federal districts throughout the country. In our district, in the Northern District of California, it's different. First of all, we get really, really good magistrate judges, right? Really highly qualified, experienced, talented lawyers apply to be magistrate judges. And in recognition of that, we focus a great deal on encouraging the litigants to consent to magistrate judge jurisdiction.

And I gather this is the issue that you're concerned with, whether it's constitutional to have a magistrate-judge take jurisdiction over the case in the way that the district judge would normally handle it, right? Take charge of everything, including a final decision. In our district, we have the highest consent rate in the country to magistrate judge jurisdiction. And that's largely because people around the district know how good our magistrate judges are. So our theory is we don't have magistrate judges do report and reports of recommendations. With a couple of exceptions, it feels like sort of glorified law clerk work. Rather, we would have, we would prefer to have them, you know, managing discovery, doing settlement conferences, and actually exercising jurisdiction over cases to the extent

the parties consent to that. And so we have, we have magistrate judges deciding, you know, often some pretty significant cases here in the Northern District of California. Now, I was being sort of flipped when I said I will take the consequentialist approach to the constitutionality of magistrate judge jurisdiction. To be candid with you, it's not something that I have studied carefully. I remember the issue came up, maybe it was in the bankruptcy context or something at the Supreme Court five or seven years ago or something like that. And I remember vaguely thinking that I didn't think it was a constitutional problem. But other than that, I don't really remember. Neither did they. My other little cul-de-sac is you referenced forum shopping.

You said, you know, during the Trump administration, people wanted to file in the Northern District of California because y'all were going to be perceived as friendly to an anti-Trump administration position. We've seen the exact same thing happening, of course, in the Biden administration, just not in the Northern District of California, obviously. A, do you think that forum shopping is a problem?

And B, do you have a fix for it? I think that forums shopping is an inevitable reality in the law, right? And when I was a lawyer, I engaged in forum shopping to the extent I was able to. You can't blame lawyers for conducting assessments of courts and judges and deciding what the most favorable forum might be. And I think you're playing a game of whack-a-mole if you try to completely eliminate forum shopping. And I think you see, this is a slight detour, but in the case law, you often see references to forum shopping, and the assumption is,

this is terrible, they're forum shopping. I think that's one of those many areas of the law where courts have adopted this erroneous factual assumption, and it drives, you know, legal decision making. I think it's erroneous to assume that forum shopping is inherently evil, right? I think it's part of the system. It always has been at all its will. But I think there are some problems with it, right? Number one, in the context of a lawsuit seeking a nationwide injunction, I'm sure this is something that you all have talked about on a number of episodes on your podcast, it's a real problem for somebody to be able to seek out one judge. former judge Greg Costa's proposal for a three-judge panel for any case where a party seeks a nationwide injunction against the federal government, right? And

his idea is, well, you can choose. You can just file a regular lawsuit if you're seeking only to, if seeking an injunction that's only going to affect you. But if you're seeking a nationwide injunction whose goal is to shut down a program, we should have these three-judge panels, and the ruling of the three-judge panels should be reviewed directly by the Supreme Court. Does that totally solve the concerns about nationwide injunctions or concerns about forum shopping? No, not at all. But I think it would be an improvement. There's one other thing that I think people talk about less that bothers me. And that is during the Trump years, when people were filing lawsuits in our district or in Seattle or in New York, they were forum shopping,

but at least they didn't know what judge they were going to get, right? There were like 20 different judges the case could be assigned to. They knew the circuit they were in. They knew the court, obviously, but they didn't know what judge they were going to get. In these cases that are happening now, the people challenging Biden administration policies seem to be able to pick their judge. And that seems, I think both from a perception and a reality standpoint, that seems a lot more problematic. What's the solution to that? Actually, I think that's an easy solution, right? The courts have control over their own intra-district venue rules. So, for example, in our court,

back in the day, only the judges who were venued in San Jose were assigned intellectual property cases filed in San Jose. And the result was that those judges were overburdened by all the really difficult intellectual property cases. a change at some point along the way where we said, okay, for these types of cases, the patent cases, trademark infringement cases, I think copyright cases also, they're going to be assigned district-wide. So you can't go to San Jose and sue and just know that you're going to end up with one of these three or four San Jose judges for that particular type of case. And, you know, the courts in Texas in the, you know, within the Fifth Circuit could presumably do something about this, presumably change their intra-district assignment rules to prevent cases from automatically getting assigned to one judge. I know that in- It happened with the Rocket Docket and the patent context in Texas.

Oh, is that, did they make those changes for the patent cases in the Eastern District? Yeah. There you go. So, and I know it happened in the Southern District of California. There was, you know, the Second Amendment groups were filing challenges to California gun regulations

in that district and seemed to be ending up with the same judge, right? And I believe I read that the Southern District of California recently changed its intra-district assignment rules to prevent that from happening. And so, you know, that's, is it going to totally solve the problem? No, but I think that, I think it's a real problem that the courts haven't done something about that in the fifth circuit. You know, when I think of the challenge of form shopping, Judge, you raise a really good point.

I mean, it's just going to happen. The choice, state or federal court, you'll make that choice based on what's best for your client. Which district? You're going to make that choice based on what you think is best for your client. which district you're going to make that choice based on what you think is best for your client. I mean, it's just going to happen. I think the question is, how consequential should it be? So it's going to happen, but how consequential? And that's sort of where the nationwide injunction argument comes into play,

because if I can go into El Paso, for example, and get the ruling that I want on immigration from the right and then have that take full effect everywhere, I mean, that makes forum shopping exceedingly consequential versus I go and I get an injunction that works in that district or regarding those litigants only, etc. It makes it much less consequential. So I do wonder if part of the forum shopping question is going to be ultimately answered by the nationwide injunction question. How do we resolve the nationwide injunction question? Or whether we do it all, whether the Supreme Court takes this up at all

is going to be very interesting. But it's absolutely in the water that it's the combo of the forum shop and the nationwide injunction that sort of seems to trigger people far more than one without the other. I think that's exactly right. All right. It's time for dessert, everyone. Are you excited? For dessert. Oh my gosh. That's right. It's MDL time. We've just been waiting to get to it. Okay, Judge. We have referenced MDLs on this podcast. It's been years, actually. But the opioid litigation that was happening in Ohio was an MDL. And in fact, the judge in that case,

and I'm going to paraphrase here, it's not the exact quote, but he said something to the effect of, Congress hasn't fixed this problem. The president hasn't fixed this problem. So I guess it's up to me, which was a stunning thing to hear a judge say. Can you walk us through what is an MDL? How do they work? How can a judge say something like this? What are the problems? What are the upsides? And then of course, you have this case that you decided that just had sort of a funny, well, something that results from MDL sometimes when it comes to lawyer fees. Sure. I mean, I don't know if I'm going to comment on Judge Polster's comment because I don't know the context, but I will say... More just on a judge saying that is because MDLs are different than a normal litigation experience, for instance.

Yes. They are weird. are very different. And they're very important. And what I find, I go around to law schools, and whenever I do, I ask for a show of hands from people who have studied the MDL system in law school. And inevitably, it's like 5% of the people raised their hands. But MDL cases constitute more than 50% of the federal civil docket. More than 50%. What? What? I kid you not. I kid you not. It used to be less. It used to be, I i mean even i think 10 years ago it was less than one third but it is now more than 50 of the federal docket so i sort of think that more people should be

learning about the mdl system in law school and and i always try to talk about when i go to law schools and maybe on this podcast or on this podcast. Or on this podcast. If they're hosting a podcast, for instance, and didn't know that. Exactly. I was about to say that, Sarah. Wait, do we need to hand in our legal podcasting credentials? Because we did not know that. Well, so let me give you a little bit of MDL 101. Okay. MDL, by the way. MDL, what does it mean? MDL stands for multi-district litigation. We have something called the Judicial Panel on Multi-District Litigation. It's seven federal judges from around the country who are appointed by the Chief Justice of the United States.

And the purpose of the panel is to help deal with mass litigation. So when dozens or hundreds or thousands of similar lawsuits are filed by individual plaintiffs against the same defendant alleging a similar injury, right? And the idea is that if we kept these cases spread out across the federal judiciary, it would paralyze us, right? We wouldn't be able to get any of our work done. And so what the panel does is it takes the cases and sends them to one judge in the country for pretrial purposes. So the judge will decide a motion to dismiss. The judge will appoint lead counsel, manage all discovery for all of these cases, decide summary judgment motions, decide motions to exclude expert witnesses, basically do everything in the case up to the point of trial. And the judge's rulings on all of that stuff will apply to all of the cases, right? So if you grant summary judgment for the defendant, you are putting an end

to all of the cases in the MDL, the hundreds or thousands of cases that may be in the MDL. But then, to the extent that an individual case in the MDL gets past summary judgment, in the MDL gets passed summary judgment, the judge sends it back to the original district, to the home district where the case was filed for trial, right? So that's the basic MDL process. This is the product of a congressional statute that was passed actually back in 1968. There's a good article by Professor Andrew Brott from Berkeley Law that describes the origins of the MDL statute and the MDL system. It's called a radical proposal. And apparently a group of scholars and judges were concerned about the coming wave of mass litigation, and they passed this statute

to enable the federal judiciary to handle the mass litigation. It was passed with a little fanfare at the time, and I think it continued to be an afterthought for many years after it was passed, was not heavily used. Why was that? I mean, part of the reason is that a lot of these types of cases got handled as class actions, right? And over time, the law regarding class actions has changed. And it's harder and harder for plaintiffs to get cases certified as class actions, particularly nationwide class actions. The idea being that we're increasingly recognizing that some of these mass cases involve too many individualized issues for each particular plaintiff to justify putting them all together in a class action and trying them as one case, right? So for example, you know,

company puts out a product, the product gets people sick or allegedly gets people sick, and a thousand people file a lawsuit, you know, can you have that as a class action? I think maybe people used to think that you could have that as a class action. Nowadays, people feel that, well, there's going to be a big fight as to each individual plaintiff on the issue of causation. Is it the product that caused your illness or is it some other environmental factor that caused your illness? And you can't really have a class action trial where you're deciding those individual questions for so many different plaintiffs. And so as the law has restricted the ability of plaintiffs and plaintiff's lawyers to bring class actions, they have needed to file individual cases. And a lot of times it's a thousand individual cases scattered all over the country.

And then so we have the multi-district litigation process to help us deal with that. I don't think that's the only factor that has caused this rise in multi-district litigation, but that's certainly one of them. Well, let's talk about the money though, because presumably you've got these thousand cases that get consolidated, at least for pre-trial purposes, but you're not going to have a thousand lawyers doing that. So one set of lawyers are now going to oversee these thousand cases. So A, that maybe sounds a little unfair to some of the other people, maybe even some of the other lawyers who kind of got their case taken away from them pre-trial wise. But then on the flip side, for those few lawyers that do spend all of this time, well, I'll let you talk about the case that you had where they thought maybe they should get a

cut of everything that came out of all thousand cases because they did all the pretrial work. So like, and this may, I guess part of my question is also, does this explain why the rise of MDL is like, let's talk about the money side. Right. Well, I'll get to my case in a second and I will need to be a bit circumspect and only say what I've already said in public about this because the case is still pending. But first, if I could touch on the initial comment you made about the lawyers who are not appointed lead counsel and therefore kind of have their case, quote unquote, taken away from them, right? That is, there are a number of academics and others who have a lot of criticisms of the MDL process. And that is one criticism or one concern. And I think there is some legitimacy to it.

You file your individual lawsuit in South Carolina. You want to go to trial. All of a sudden, your case gets swept up by the JPML, the Judicial Panel on Multidistrict Litigation, sent over to some random judge in San Francisco, where your case becomes part of a group of thousands of cases. The judge in San Francisco appoints somebody else to speak for all, essentially speak for all the plaintiffs in this proceeding. And you're basically relegated to the sidelines until such time as the case is settled or are ready to go to trial. So there are some due process-y kinds of concerns there for individual plaintiffs

that I think present a lot of challenges for the MDL judges. Relatedly, this is a big concern that I have and that I share with the critics of the MDL process. When you are one of those lawyers who has one of those clients who gets swept into the MDL and you're just sitting there on the sidelines, sometimes I think it starts to feel like you only have two choices. One is to settle the case. And two is to just sit there and languish for years and years and years while all of this stuff gets worked out in the MDL process. And if those are your only two choices, you're feeling like you're forced to settle for pennies on the dollar.

And I think that concern can be exacerbated at times if the judge is too focused on getting the cases settled and not focused enough on working the cases up so that they can be sent back to their home district for trial. And that's a concern that the MDL critics express. I think it's a legitimate concern. And I think that we judges have to be careful not to focus too much of our attention on trying to get these cases settled at the expense of getting them moved along and ready to go to trial. And that's interesting, just real quick, because whereas defendants hate class action lawsuits, what you're describing would be that defendants want MDLs. Yes, although you hear criticism from the defense side too, and this actually gets to a little bit to the point that you were making at the very outset of this discussion on MDLs. On the defense side,

lawyers and parties, I guess, often complain that there are really no rules governing the conduct of the MDL or the judges running the MDLs. And I think there is this mentality sometimes that, you know, these mass tort cases are a huge mess. They are, there are intractable problems. And let's just send them into the wild west of the MDL and let the judge figure it out, right, without regard to, MDL and let the judge figure it out, right, without regard to, you know, whether the judge actually has the authority to solve a particular problem. So that is a concern from the defense side, but I think you're right that this process of sending all these cases to one judge and having them sit there for a really long time can really benefit defendants who are hoping to settle these cases on the cheap, right? Now, you also asked about the flip side, which is, you know, the experience of the lawyers who do get appointed lead counsel. That's an interesting process. Sometimes,

there will be multiple lawyers competing to be appointed lead counsel. One MDL I have is the Cambridge Analytica Facebook case, the lawsuit against Facebook arising out of the Cambridge Analytica scandal. And that was like 30 different cases, actually 30 different proposed class actions filed all over the country, or maybe more, it's probably more than 30. And every single lawyer who filed an individual class action case, once the case got MDL'd to me, they filed a motion to be appointed lead counsel. So I needed to decide among 30 sets of lawyers to appoint them lead counsel. Gosh.

And basically, it's a beauty contest. They come in and they come into court and they try to explain to you why they're so much better than all of their competitors. to explain to you why they're so much better than all of their competitors. Do they have like a sizzle reel judge where, you know, they've got the drone footage sweeping in on their office and they've got the swelling music in the background and action shots of the lawyer striding into court and things like that? Our associates are treated humanely, not too humanely. They'll turn the hours. It's not that far from that.

Although another issue when you talk about associates, I mean, another issue is a lot of, there's a lot of discussion about the need for diversity among lawyers who get appointed lead counsel in these MDLs. And that's, I mean, that'll get us really sidetracked, I think, if we talk too much about that. Because I saw your eyes get very big when I mentioned it. Yeah, noted on that constitutionally questionable thing. the Facebook Cambridge Analytica case, what I did is I narrowed it down to a final 10. And I made sure that the slate of the final 10 was very diverse in a variety of different ways. But then once it got to the final 10, I was very focused on just who's going to do the best job in this case. I don't know if you feel bad it was unconstitutional, but that's how I did it. So, Judge, you have life tenure, so you have a lot of liberty. So, I'm just begging you, one time, narrow it down to like 10 attorneys and then just a one-line order that the lead attorney will be settled in trial by combat. And you just set up a ring. It's not that far from

that. So anyway, in my Roundup MDL, which is against Monsanto claiming that the weed killer Roundup causes cancer, there was only one slate of lawyers putting themselves forward to be lead counsel. And so I simply appointed them. But then what happened is, you know, again, the case is ongoing and this issue is still alive. So I can only really say what I said in my opinion about it, which was a lot, but the lead lawyers in the MDL asked me to issue an order requiring that for any recovery from Monsanto, now Bayer, that anyone gets anywhere around the country, based on a claim that Roundup caused their cancer, any recovery at all, whether the case is in state court or federal court or no court at all, just an out-of-court settlement, they asked me to issue an order requiring that 8% of that recovery be withheld and put into a fund to compensate the lead lawyers in the Roundup MDL, my MDL. So I had to, I mean, obviously it's a very complicated issue and I wrote a long opinion about it, but the upshot of it was, I don't have the jurisdiction to do that. And I understand your concern that people are free riding on your hard work in this

MDL. And that is a legitimate concern. And we can talk about ways to deal with that. But it is totally outside my jurisdiction, my authority to reach over to some individual who's in South Carolina and hasn't even filed a lawsuit and reached a settlement with Monsanto of their claim that the roundup caused them their cancer. Because right, in theory, their case, these are all pretrial work that they're putting in.

And then their case will go to trial. They could just lose their case and maybe everyone else wins their case. And they just spent three years in pretrial litigation and they're a contingency fee case and maybe everyone else wins their case. And they just spent three years in pretrial litigation and they're a contingency fee case and there's loses. They get zero after all of that in theory. So it is a big issue and they're taking big risk. And what I did say is, look, for every case that is in this MDL, for every case that I have jurisdiction over, I do have the authority to order that a portion of any plaintiff's recovery can go into a fund.

And then they're fine. You would think so, but I don't know. I mean, I think they were trying to argue that that would be inadequate to compensate. Nah, greedy lawyers. Boundless, endless greed. So you've been incredibly generous with your time, Judge. Really appreciate it. But one thing, just switching gears radically, one thing that, you know, we've talked to judges who've come on the podcast before and sort of talked about how do you become a judge and how do you become a federal judge how do you become a federal district judge and there's kind of a track that people are aware of on the right side of the aisle that you know as right now it's really hard to imagine that you can be a judge appointed by a republican um president and not be a member of the FedSoc, for example. So

there's a FedSoc box you got to check. And then there's other boxes. What is, what are the, are there any different kinds of boxes you're sort of checking if you're, you know, if you're going to be somebody who might be appointed by a Democratic president? What is, is there sort of a known way in which there's a judicial track, or did sort of the hand of God come in and pluck you out of the legal profession? What's the plan and the track on that side of the aisle? Yeah, it's a good question. Maybe I'll talk a little bit about my own experience and then speak more generally about what I perceive to be going on right now. And regarding my own experience, my colleague, Chief Judge Richard Seaborg, always says, if you want to get the judge talking forever, ask them about their confirmation process.

So I'm going to try to keep it really short. So I'm going to try to keep it really short. But my own experience, I did my clerkships. I worked at a downtown firm in San Francisco for a couple of years and job. And the other thing I was considering was going to the San Francisco City Attorney's Office, which defends San Francisco in all kinds of litigation and also brings affirmative litigation on behalf of the city. I think that if I were thinking about the kind of box-checking stuff that you're talking about now, I would have gone to the U.S. Attorney's Office, right? Because back then, I mean, we're talking about like 2005 now, right? Back then, if you wanted to be a federal judge, you almost had to be either a federal prosecutor, a big firm lawyer, or both. That was really the profile of people

they were putting on the bench back then. That's not what I was thinking about. I was thinking about which job will be more fulfilling and satisfying for me? Which job will I enjoy doing more? Which is the kind of job that I went to law school to do? And the answer for me personally, even though being an AOSA is a fantastic job and you can do a lot of good in that job, for me, it was working on these policy constitutional questions that were implicated by a lot of the things that the city of San Francisco was doing back then, right? I mean, there was the marriage equality litigation, which was something that I loved the idea of working on. I ended up defending San Francisco's universal healthcare program shortly after I got to the city attorney's office. So anyway, I wasn't doing box checking. But as it turns out, right, the work that I did in the city attorney's office

probably made it more likely for me to become a federal judge. Because although that wasn't the profile at the time I made the decision, by the time of Obama's second term, which is when I got appointed, they were looking for experiential diversity more than anything else. And they were looking for, you know, one of the things they were looking for was local government. Also, you know, I think, you know, when back in 2005, you know, people who worked on marriage equality couldn't dream of being appointed to be a federal judge, right? But eventually the tide turned and what seemed like a negative, I think, became a positive, to be perfectly candid, right? So I think one lesson is, you know, people shouldn't be worrying

about checking boxes because you just have no control over how things are going to go, how thinking is going to change, where one path is going to take you versus another path. So I'm a big opponent of thinking about checking boxes. And that's never how I approached my career. That having been said, to provide a more direct answer to your question, been said to provide a more direct answer to your question. My perception just from watching the nomination and confirmation process in the Biden administration is that there's no single box like the FedSoc box that people check. It seems like the Biden administration is placing a premium on racial diversity, and it's also placing a premium on experiential diversity. things and, you know, broadening the horizons of the judiciary from a body that largely consisted of former prosecutors and former big law lawyers to a body that now has a, you know, wide range of perspectives and wide range of experiences. And sort of to go back to the stuff we were discussing

at the beginning, if we're going to be honest about it, people do bring those experiences and those values into the job of judging. And so it's important to have people with different perspectives. And if someone's trying to clerk for Judge Chavria, what's the number one thing they could have on their resume? Like they love eating stone crabs or they like polar bear swims, you know? Banana slugs. They're banana slugs. I'd love to get a slug. I haven't managed to do that yet. But actually, I try not to do my hiring that way.

I try not to gravitate towards people who are like me or gravitate towards people who have this characteristic or that characteristic. I think the one thread that runs through my clerkship group is that when I am hiring, this is a little different from how a lot of judges do it, I think. I don't really talk very much to the law professors, but I talk a ton to people you may have come across in your work life over the years. So I will call, if I find out that you worked at a restaurant in college, I will try to get in touch with the manager of that restaurant. Some foundation that you sat on or some job that you did between college and law school or even during college. I want to know what kind of person you are and what it's going to be like for your co-clerks to work with you. Are you going to be somebody who is equally respectful to the janitor as you are the judge? There's a lot of effort that I put into avoiding bringing into chambers a personality who is going to be disruptive or disrespectful to anybody around them.

So I think we've had a wide, I've been on the bench 10 years now, and actually my 10-year reunion is coming up in a few months. If you look at the people who are going to attend that reunion, it's a very eclectic group. There are nerds. Ideologically, it's an incredibly eclectic group, by the way. You have a bit of a reputation for hiring conservatives occasionally. Yeah. Not occasionally. Regularly.

Yeah, I mean, I try. I think it's really valuable to have different perspectives in chambers. And I think back to one year, a couple of years ago, I had somebody who came from Jay Richardson's chambers of the Fourth Circuit, somebody who came from Jeff Sutton's chambers, and then a out-and-out communist straight out of Yale Law School. And that was just a great, the difference of opinion and chambers and the back and forth that we had, it was so, you know, it was really great. And I feel like it made us better. It made our overall chambers operation better. It's increasingly hard to do that now with the law clerk hiring plan because it's mostly the judges on the left side who are following this hiring plan where you're not allowed to hire anybody until after the law student's second year. And the more conservative judges are hiring law students, you know, like after their first week of law school. Sometimes they don't even wait for that.

Are you thinking about going to law school? Are you currently in a very precocious sixth grade? My God, please apply. I will say the one exception is I have an open offer to Ninth Circuit Judge Michelle Friedland's high school daughter to come clerk for me whenever she wants, because she's already as smart as Michelle Friedland.

But, you know, so I used to work with Amul Thapar, and we would try to interview the same people and share notes about them and stuff and a couple of the other judges. But it's really hard to do now, given the timing. I guess one thing I would say is, to you law students out there, if you've landed one clerkship with somebody on the conservative side and you'd like to do a district court clerkship with somebody with a different perspective, just wait. Just wait until after your 2L year and then apply to district judges. But the one line that, you know, the through line for us in chambers is, you know, it has to be somebody who we're very confident is going to be a good person to work with. And there was actually one person, one time I called the manager of a restaurant or the manager of a coffee shop or something of somebody who I was going to hire and I ended up not hiring them

and later found out that that was a good idea that I didn't do it. Well, Judge, this has been a treat. Thank you so much for coming on and being willing to talk about soap. We ran the waterfront with you and it was so helpful. It's exhausting. And that's what we'll tell future Article 3 judges. Come on, Judge Chabria says, quote, it's exhausting. We should put that like in our sizzle reel. All the endorsements from various judges. It's exhausting. But I love it.

We're so happy to have you as our fairy godmother judge looking out for us out there on the West Coast and appreciate everything you're doing. And, you know, you say you don't get to talk about judicial philosophy a lot, but clearly you give a lot of time, mental, physical energy, all of it to your work and upholding the constitution. And we just, we appreciate what you're doing as a public servant out there. Thank you. Well, thank you. And thanks for doing what you're doing. Thanks for keeping me informed. And Sarah, we'll look forward to seeing you in the belly of the beast, San Francisco in May to speak with Justice Breyer. Woo! Woo! Woo! Woo!

Woo! Woo!