The law of judicial reassignment is not frequently invoked. However, when reassignment is an issue, it is important, both to the parties and to the judge involved. Reassignment occurs when a court of appeals directs that, on remand to the district court, the case be reassigned to another district judge. Like recusal, this may occur on motion or sua sponte. Reassignment presents problems for both litigators and judges, and this article proposes a legislative solution. We propose a “two strikes” rule with a presumption in favor of reassignment, and that the legislature eliminate the balancing of judicial economy when considering the appearance of justice.
The provisions of 28 U.S.C. 2106, permitting an appellate court to require reassignment upon remand, present a mixed bag for litigators. The dilemma for litigators is that they do not want the case to be decided by a judge who they perceive as lacking the requisite impartiality. On the other hand, if the litigator invokes the statute and requests reassignment only to be denied, any prevailing decision resulting in a remand to the errant district court judge will likely be a Pyrrhic victory because the litigant will have further alienated the presiding judge.
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