Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, January 27, 2014

Bock on Restructuring the Federal Circuit

Jeremy W. Bock, Assistant Professor of Law at the University of Memphis, Cecil C. Humphreys School of Law has a new paper up on SSRN, Restructuring the Federal Circuit. The abstract:

The de facto steward of U.S. patent law is the United States Court of
Appeals for the Federal Circuit, which is the exclusive appellate venue for
patent cases. As the perceived importance of the patent system has steadily
increased since the court’s formation in 1982, the Federal Circuit’s
performance has been closely followed by an ever-expanding group of
practitioners, academics, and other interested observers, who have not been
shy about pointing out the court’s deficiencies. Common complaints about
the Federal Circuit’s case law and the quality of its decision-making
include: panel-dependency, formalism, indeterminacy, and the over- or
under-enforcement of certain doctrines. The academic literature offers a
variety of proposals for remedying or compensating for the Federal
Circuit’s perceived shortcomings, such as having specialized patent trial
judges, expanding the number of circuit courts that hear patent appeals,
and modifying the Federal Circuit’s jurisdiction.

Compared to existing proposals, this Article takes a different approach
to analyzing the Federal Circuit’s problems by focusing primarily on the
judges themselves and their adjudicatory environment. Lessons from
cognitive psychology, management science, and the literature on judicial
behavior suggest that many of the complaints about the court are
potentially grounded in, or at least aggravated by, the expertise developed
by the judges and the internal dynamics of the court, which may adversely
affect the Federal Circuit’s ability to reconsider its precedents in a timely
manner. This Article explores how the Federal Circuit, in its current form,
may have difficulty self-correcting, and proposes that a solution may lie in
staffing the Federal Circuit with only district judges who serve staggered
terms of limited duration.

As an appellate court with specialized subject matter jurisdiction and an interesting mandate (create uniformity in the nation's patent law), the Federal Circuit occupies a unique position in our federal judiciary. It is also a rather recent creation, an early 1980s merger of the Court of Customs and Patent Appeals and the appellate division of the Court of Claims.  As such, it is subject to considerable scrutiny and criticism, much of it regarding whether the court is working properly.  Bock's article examines the Federal Circuit's operations through the lens of cognitive psychology and organizational behavior, and he offers an interesting proposal for reform.

https://lawprofessors.typepad.com/appellate_advocacy/2014/01/bock-on-restructuring-the-federal-circuit.html

Appellate Court Reform, Appellate Justice, Federal Appeals Courts | Permalink

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