Capture—the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating—is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.
This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the theoretical case that federal courts can be captured. Expanding upon the regulatory capture literature and what literature exists about the capture of courts, this Article demonstrates that the institutional safeguards often thought to shield judges from special interest influence (including political independence, lifetime tenure, and general jurisdiction) may, in some cases, break down, leaving courts exposed to capture in much the same way as agencies.
Then, this Article turns to the application of the theoretical argument. It focuses on the U.S. District Court for the Eastern District of Texas, the district that until recently received the most patent cases of any district court in the country. The Eastern District of Texas exhibits many classic signs of capture, including a revolving door between the federal bench and law firms, the region’s economic dependence on litigation, and a mutually beneficial relationship between the plaintiffs’ bar and the Eastern District judges. In conclusion, this Article urges Congress to tighten venue requirements and to mandate random assignment of judges. These proposals would better protect the U.S. federal courts from capture.
J. J. Anderson, Court Capture, 59 B.C. L. Rev. 1543 (2018), https://lawdigitalcommons.bc.edu/bclr/vol59/iss5/2