Brooke Masters and Stefania Palma

But if the public had “the perception that the judiciary is acting not consistently with facts and law in deciding cases, but rather that the judges are political in nature . . . it degrades their faith in the impartiality of the courts, and that undermines the rule of law”.  Unlike most European countries, the American legal system allows a fair amount of leeway on where lawsuits can be heard. Plaintiffs and defendants routinely jockey over whether state or federal judges should hear a case and whether the matter belongs in a particular court within either system.

Historically, business groups have criticised plaintiffs’ lawyers for seeking out friendly judges and juries for large damages claims, and liberal public interest groups often filed their challenges to the firsthand Trump administration in states and circuit courts with more Democratic appointees. But in recent years, powerful industry groups have done some of the most visible manoeuvring by finding ways to challenge government regulations in courts that have a larger share of conservative judges, particularly the Fifth Circuit, which covers Texas and nearby states. 

While the US Securities and Exchange Commission contemplated new disclosure rules for private equity and hedge funds, some of the industry’s most powerful members set up a lobbying group in Texas. When the regulation passed, they used that group’s location to file a challenge to it before the Fifth Circuit rather than in Washington, where such challenges have traditionally been brought. The financial industry used a similar tactic to take on the SEC’s rules on short selling and new requirements for participants in the Treasury market. “It does work both ways. That doesn’t make it right or optically palatable,” said Scott Dodson, professor at the University of California Law, San Francisco.

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Related: Act 10 ongoing lawfare