Judge Nominee: Evan Wallach

Earlier today, I posted an essay titled "Federal Circuit Judicial Watch." Following my post, the White House announced an update — that International Trade Court Judge Evan Wallach has been appointed to fill an open slot on the court. Judge Wallach is well known as an expert on war crimes and previously served as general counsel for Senate Majority Leader Harry Reid as well as in private practice and the army JAG corps.

26 thoughts on “Judge Nominee: Evan Wallach

  1. Imagine systematically shutting me down. First with Lawyers. Then at the USPTO. Jobs lost by both of us, then a Financial ruin. And most of that ruin by design.
    And then along the way doing terrible things to me including Rape. If you think for one moment I won’t be able to get help writing this American Saga you are sadly mistaken. My chances at not getting this written are about as much as yours getting elected after it is written. And you all took the Job to defend the Constitution. And you knew everything. Including the fact that I didn’t Notarize the Oath in Oct of 1995. and you surely knew I never did either in Sept. of 1995. And the reason they did it. And you defended them instead of all the People that got you elected.

  2. Pauline Newman has been saying that for decades. Isn’t it wonderful that the Supremes are picking up the slack?

  3. Sue, I agree that former clerks have a better vantage point than I do, but my point about patent cases taking disproportionately more time is something I’ve heard the judges say at conferences. And as noted above, it’s pretty obvious if you compare the opinions in patent cases with appeals from the MSPB and CAVC.

    Here’s how a very high percentage of decisions in the MSPB and CAVC appeals read:

    Appellant represented by counsel: Affirmed. Fed. Cir. R. 36.

    Pro se MSPB: We review this for substantial evidence; we see some; you lose.

    Pro se CAVC: We have barely any power to review CAVC decisions. Even though we might sympathize with you, you lose.

  4. I just received today’s report, on yesterday’s CAFC actions:

    1 semi-substantive jurisdicational order in a VA case.
    1 procedural order in a HUD case.
    4 procedural orders in patent cases (1 from PTO, 3 from DCT)
    3 procedural orders in Merit Systems Protection Board cases
    1 procedural order in an appeal from the Court of Federal Claims.
    3 substantive opinions in patent cases, including the Myriad Genetics case.

    Looks like patent law issues dominated yesterday’s output.

  5. Mr. Dhuey’s “rough guess” is consistent with what I remember. There are easy patent cases and hard MSPB cases, but overall… 2/3 spent on patent cases sounds roughly correct… maybe even a tad low.

    People who haven’t clerked can make an informed guess based on the court’s output if they follow the opinions.

    I wonder what people think the ideal composition of the Federal Circuit should be, or at least what the court needs “more” or “less” of. I think one former trial judge is too few, and perhaps Judge Wallach’s experience in that regard will help, even if he’s not a former district court judge.

  6. Thank you for that, Mr Cole. But Paul, you are not the only one, it seems, who is “missing something”.

  7. Paul, Appeals court judges review the work of Distict Court judges to determine if a legal error was made. If they don’t know the law, how can they make that determination?

  8. 30-40% is counting every D. Ct. appeal as a a patent case

    Which is probably accurate. Does the Federal Circuit have jurisdication over any other appeals from district court?

    Sign up for PATracer at link to patentlit.com and look at every opinion and order coming out of the Federal Circuit for a week or two. It will become very clear that well over half of the real work is in patent cases, whether from the BPAI, District Courts, or the ITC.

  9. It is good for judges to approach the cases before them with an open mind. Therefore a technical background should not be a prerequisite in giving a just decision in a case involving signal processing or genomics. Come to think of it, knowledge and experience in the relevant area of law is not too important either.

    Why not just take someone from the street and promote him or her to the bench? Or am I missing something?

  10. NWPA said… “Few who have not been patent attorneys understand patent law”

    As a patent attorney, I fully agree.

    But I think that is not a good situation. “The folks” should be able to understand this important area and not have to have our priesthood intercede on their behalf whenever encountering the patent world. As a practitioner, of course, the situation making my services a necessity is fine, but as a citizen I think it is bad policy.

  11. As to this issue of the percentage of time spent on patent law, my understanding is that tax law and takings (since corporations often pay the taxes then sue to reclaim the tax to avoid penalities) and patent law take the vast majority of the federal circuit’s time.

    So, I think it is safe to say that patent law is by far and away the qualification needed to sit on the federal circuit. I think that few would disagree that having actual experience as a patent attorney is invaluable in understanding patent law. J. Rich should be the model.

  12. Few who have not been patent attorneys understand patent law. We need judges that have been patent attorneys particularly now when there is so much noise that is created by the likes of Lemley from academia and J. Moore from the bench.

  13. The Federal Circuit hears appeals from the US Court of International Trade, the Article III court on which Judge Wallach currently sits. Those appeals make up about 10% of the docket. Cases before the CIT involve review of agency determinations, as do some of the patent and most of the other appeals the Federal Circuit hears.

  14. I agree, Andrew, especially as all of the ones with “real life” patent experience (Newman, Lourie and Linn) can take, or will soon be able to take, senior status. That doesn’t bode well in what is now obviously an active area of law for the Federal Circuit.

  15. This is where a comment from someone who actually knows what happens at the court would be useful. Unfortunately, AD doesn’t know. Even DC doesn’t know.

    Speak to a former clerk to find out.

  16. It’s not just a matter of “technical background”. It’s a matter of relative qualification. It just seems that there are many lawyers and judges who are far more qualified to hear Federal Circuit cases. They just don’t happen to be closely affiliated with Harry Reid.

    Plus, a judge should be selected based on one’s ability to render judgment in the most difficult cases, with the clear premise that if one can handle the most difficult cases, then one must be able to handle the less difficult cases. I would assume that the patent cases are the most difficult cases before the Federal Circuit. Therefore, being able to render judgment in patent cases is the threshold test.

  17. D.Ct
    427
    Reversal
    13

    No indication how many are patent cases, and further still, whether they actually involve substantive ?’s of patent law.

  18. Picking a random year (2004)

    Terminations By Judges (Total=1076)
    PTO:49
    MSPB:259
    Veteran’s Affairs:89
    Federal Claims: 120
    %Reversal
    PTO:6
    MSPB:5
    Veteran’s Affairs:0
    Federal Claims:8

  19. 30-40% is counting every D. Ct. appeal as a a patent case

    ~5% court of international trade
    ~5% BPAI
    ~30% from D.Cts.
    ~20-25% merit systems protection board
    ~10% veteran claims
    etc. etc.

    the whining for “technical background” for Federal Circuit judges every time there’s a nomination is simply nonsense as it’s simply not a prerequisite to being able to handle that court’s business. Many top patent litigators have only B.A.s in things other than engineering, yet top tech companies seem to have few qualms about hiring then.

  20. 39% of cases judged by merits panels, but keep in mind that the combined 37% of federal personnel and veterans cases are not nearly as time-consuming for the court. A very high portion of those are “no chance” cases where the court writes a very short opinion affirming or a Fed. Cir. R. 36 one-word affirmance.

    My rough guess is that the Federal Circuit spends about 2/3 of its time on patent cases. We’re starting to get pretty light on circuit judges with substantial patent law experience.

  21. Another political appointee to a highly specialized and techical court. I hope to hear more of Mr. Wallach’s actual qualifications to server on the Federal Circuit.

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