Legal Scholarship and the United States Court of Appeals for the Federal Circuit: An Empirical Study of a National Circuit

Abstract

It is conventional wisdom that the United States Court of Appeals for the Federal Circuit, a court whose jurisdiction is defined by subject matter rather than by geography, is less likely than other circuit courts of appeals to use legal scholarship in its decisionmaking. This common belief is regularly used to substantiate a well-worn criticism of the Federal Circuit specifically, and of national courts generally; namely, that they are substantially more insular and somehow less intellectually curious than the regional circuit courts of appeals. We were therefore very surprised to find how little empirical support the conventional wisdom finds in legal literature. A review of the existing literature reveals that relatively little is known about the use of legal scholarship by the Federal Circuit—and by analogy courts whose jurisdiction is defined by subject matter rather than geography—and perhaps even less is known about how the Federal Circuit’s use of legal scholarship compares to that of the regional circuits. The study reported in this Article contributes new and original information and analysis. It empirically compares the Federal Circuit’s use of legal scholarship with that of the regional circuit courts of appeals. Perhaps the most significant finding is that the Federal Circuit’s use of legal scholarship appears quite similar to that of the regional circuits, suggesting that the court is not the outlier that many presume. This finding places the conventional wisdom into serious doubt and has obvious implications for the evaluation of other proposals for subject matter-bounded courts. © 2012 David L. Schwartz & Lee Petherbridge, Ph.D. † Assistant Professor of Law, Chicago-Kent College of Law. †† Professor of Law, Loyola Law School Los Angeles. For helpful comments and insights the Authors wish to thank: John Allison, Gwendolyn Ball, Lawrence Baum, Christopher Cotropia, Rochelle Dreyfuss, John Golden, Stuart Graham, Richard Gruner, Timothy Holbrook, Mark Lemley, David McGowan, Michael Meurer, Craig Nard, Arti Rai, Matthew Sag, Ted Sichelman, Michael Solimine, Katherine Strandburg, Emerson Tiller, Andrew Torrance, R. Polk Wagner, Corey Yung, and the participants at the Second Annual Searle Research Roundtable on the Empirical Studies of Patent Litigation at Northwestern University School of Law, the Fifth Annual Conference on Empirical Legal Studies at the Yale Law School, the Conference on Empirical Studies of Intellectual Property at the University of San Diego School of Law, and the 2010 Midwest Law and Society Annual Retreat at the University of Wisconsin Law School. For excellent research assistance the Authors thank Richard Tuminello, Evette Ferkassian, Rose Ohanesian, Matthew Rudolph, Daniel D’Addario, and Teresa Clark. 1561-1602_SCHWARTZ_041712 (DO NOT DELETE) 4/17/2012 2:24 PM 1562 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 26:1561