The Federal Circuit’s Use of Legal Scholarship

By Jason Rantanen

Professors Lee Petherbridge and David Schwartz have released a draft of their new study on the use of legal scholarship by the Federal Circuit.  In the paper, the authors question the conventional wisdom that the Federal Circuit is less likely than other circuit courts of appeals to use legal scholarship in its decision making, and conclude that this oft-repeated claim is contrary to the empirical evidence. 

Methodology and Dataset:  The authors conducted a search of all the reported opinions for the United States circuit courts of appeals for the years 1990-2008 using a mechanical approach to identify each opinion citing to legal scholarship at least once, followed by a custom-made computer program that identified individual citations to legal scholarship. 

Findings: Contrary to result expected under the conventional wisdom, the authors found that the Federal Circuit's use of legal scholarship is similar to that of the regional circuits.  Although it falls on the lower end of the spectrum of judicial citations, the overall frequency with which the CAFC cites legal scholarship is within the range expressed by the regional circuits, and the median frequency of citations per judge falls around the middle of the regional circuits.

The authors also discovered that, unlike some of the high-frequency-of-citation regional circuits, the Federal Circuit lacks any legal scholarship "super citers," such as Judges Posner, Easterbrook, Calibresi, Becker, and Kozinski, which may explain why its overall citation frequency falls on the lower end of the regional circuits.   

Implications: Based on their empirical analysis, the authors conclude that the "claim that the Federal Circuit does not use legal scholarship as much as it should because it does not use it as often as the regional circuit courts of appeals is essentially eviscerated."  Thus, the authors recommend that future scholarship should focus on the merits of the Federal Circuit's use of scholarship, asking questions about when and how the court uses legal scholarship.

The authors also suggest that adding or encouraging an existing judge to become a "super citer" might be beneficial.  They reason that having a small number of judges who regularly study and use legal scholarship allows that scholarship to make its way into the jurisprudence at a measured rate, where it can be considered by the remaining judges who rely on more traditional tools for developing the law.  This mechanism encourages jurisprudential innovation while preventing sudden dramatic shifts. 

Read the Paper: Download here.

28 thoughts on “The Federal Circuit’s Use of Legal Scholarship

  1. Law review articles are generally useless, and boring to boot. They’re written for the sake of being written, not to be read (except by the handful of other law professors who are on the author’s tenure committee); and the more outrageous the thesis of the article, the better. It’s basically “see-how-clever-I-am” literature. Even the articles that collect statistics are of limited use, because those statistics often are inscrutable (changes in the number of continuations or RCEs filed over time may be attributable to several different reasons). You wanna advocate policy? Great, but direct that to Congress.

  2. Lemley’s articles are good, to a certain extent.

    Primary – good for sure what not to do for an objective presentation.

    Secondary – when printed on really soft tissue paper, makes a perfect match for bathroom use.

  3. Lemley’s articles are good, to a certain extent.

    The problem with most scholarship is that (1) there is too much of it because it is too inexpensive to produce, and (2) the law professors are motivated to produce articles that propose something different, even if the “something different” has limited real-world value. This leads to a vast overproduction of marginally useful writing.

    The comment above about Crouch’s written description article is on point. Reams and reams of pages have been written about the written description issue. Crouch’s analysis was something that most practitioners knew already. Citing the article was just an easy way to support what was known.

  4. Also, the shots against Lemley are weak and juvenile. His articles are some of the “good ones,” and his perspective is helped by the fact that he actually practices. I don’t agree with a lot of his positions, but much of his work is exemplary of the stuff that more professors should be doing if they want judges reading and citing law review articles.

  5. I’ll look forward to reading the article. It sounds a step forward from Craig Nard’s quest to shame the CAFC into citing his work.

    I have yet to hear a convincing response to the critique that most legal scholarship is not directed to helping judges decide tough cases. And the small amount of scholarship that does relate to this is often either obvious or of low quality. There are exceptions, of course. DDC’s analysis of how much the separate written description requirement actually matters in practice, for example, was highly useful, and the CAFC seemed to agree in deciding Ariad.

    For those practitioners who litigate patent cases, perhaps just ask yourselves how often you read law review articles when you write briefs. Other than the handful of articles that count cases and track trends (e.g., here’s how district courts are deciding injunctions after eBay, or here’s how often the Federal Circuit reverses findings of no inequitable conduct), when has a law review article ever helped you make sense of existing doctrine or done a good job of suggesting a direction that an unsettled area of law should take?

    There are a few frontiers out there (patent misuse and pool licenses, for example–see Princo; the false marking statute on some level, the new biologics legislation), and the Supreme Court’s new cases leave some areas open to useful discussion.

    But much of the scholarship out there is directed to law & economics, or to imagining what patent law might look like in a parallel universe in which the IP clause of the constitution doesn’t exist, and “should we have a patent system at all” is an open question.

  6. “The authors also suggest that adding or encouraging an existing judge to become a ‘super citer’ might be beneficial.”

    This is an absolutely HILARIOUS suggestion. I love it.

    Perhaps they would want the Super Citer to supercite Petherbridge and Schwartz articles.

    The implicit rationale — that the opinions would be “better” if more “scholarship” was cited — is also HILARIOUS. Will more citations also make the reasoning more sound? I expect more from a former Federal Circuit clerk.

    Also, the fact that they use Posner as an example must mean they have no idea of how Posner writes his opinions. He writes his own opinions (kudos to him), but often leaves the task of filling in the citations to his clerks.

  7. Dear all,

    It is nice to see that my very good friend Pat is still active in matters of patent law. If anyone would like to hear my views on what is being bandied about, please feel free to send me an email at grich@pearlygates.com.

    Your BFF,

    Giles

  8. Gee, I wish I had you guys around when I was revamping the patent law in this country.

    Happy holidays,

    Pasquale J. Federico

  9. Ah the filter ate my post. The bag on professership stuff was prime.

    suffice to say, Willton, “no”

    And please note that the Eskimo aint my boy – way way too much a control freak there.

  10. O, there be plenty O objective reasons for disdain for Lemley. Ya only have ta read his stuff to see the rampant bias.

    The same could be said of your boy Gene Quinn, although I seriously doubt he has written anything scholarly. But just because a particular paper is biased does not mean that it is wrong. Try again, ping.

  11. Ted,

    A nod to the kudo’s but with my “Homey don’t do answers” policy, Iza gonna havta decline. I know, I know – bitter disappointment – but hey, at least ya gotz my sterling observations still.

    As for Sunshine Malcolm, well, he be off chasin Windmills and mindin fields O rye. Sides which, if he did take that job, he would actually have to do somethin O substance and give up empty be otchin here.

    What about my main man IANAE? He can carpet bomb any of those judge folk into next Tuesday. He get my number one nod.

    Mikey – it should be obvious that the type O bias Iza talkin bouts with Lemley be objectively wrong. There be some serious blinders and double-jointed shoulders on that one. And recognizin “intelligence” when it comes to creative ways to lay waste to the patent system only matters to one individual I know of (and that be owin to the absolute skill O language he deploys – and that aint Lemley, Lemley’s ideas only convince those who be already convinced that patents be evil).

  12. The regional circuits are more likely to rely on legal scholarship because legal scholarship typically will survey district and regional courts and it saves the regional circuit time in having to do that themselves. On the other hand, all lower court patent roads lead to Rome and the Federal Circuit doesn’t have as great of need to look other circuit or district court. As for legal scholarship “super citers,” the judges on the Federal Circuit itself fill that purpose and the only other place to look are the contributors to PatentlyO.

    I hereby open nominations of PatentlyO regulars as a legal scholarship “super citers” to recommend to the Federal Circuit.

    My input, I nominate:
    1. Malcolm Mooney with ping as runner up.

  13. For instance, your disdain for Lemley’s work is your opinion, but it may not reflect an objective evaluation of his scholarship.

    O, there be plenty O objective reasons for disdain for Lemley. Ya only have ta read his stuff to see the rampant bias.

    Reminds me of you, Willton-policy-in-a-vacuum boy.

  14. This is just to provide one example of why some of the academic studies that merely cite earlier academic studies as “authority” are so flawed. One often-cited old patent “economic study” consisted merely of having some grad students call CEO’s of major companies to ask if patents were important to their company. The economics professor was obviously clueless to the fact than any competent CEO would ask at least their general counsel before answering such a question, and most general counsels and even patent counsels would counsel them to not respond or to just say “no” because “yes” might risk leading to some future anti-trust allegation. Futhermore, most large company CEO’s would not attribute their companies current new product sales successes to patent protection (rather than their own management and marketing abilities) in any case, and would rarely have detailed knowledge of their companies actual patent protection.

  15. If the “legal scholarship” that’s going to be cited by the Federal Circuit includes junk like Lemley/Moore’s paper on continuation practice, or crapola like Lerner/Jaffe, that would be unfortunate. That stuff is not “legal scholarship.” It’s ignorance.

  16. Re the lack of academic citations, there is a big difference between a detailed objective and impartial study of the case law and its actual conflicts on a given subject, and/or useful statistical studies [for example as Dennis does], vis a vis unrealistic and/or impractical proposals for drastic changes in patent law evidencing lack of contact or communication with real world patent attorneys, and/or highly subjective economic allegations based on mere telephone calls expressed opinions “studies” rather than controlled statistical studies.

  17. Perhaps the study is missing one important factor – an impartial and objective critique of the quality of the available legal scholarship in the patent domain.

    The problem here is that valuations of the quality of particular legal scholarship is highly subjective. For instance, your disdain for Lemley’s work is your opinion, but it may not reflect an objective evaluation of his scholarship.

  18. Perhaps the study is missing one important factor – an impartial and objective critique of the quality of the available legal scholarship in the patent domain.

    Not to be overly harsh, but if Lemley is held to be typical, the Federal Circuit is better off being less likely than other circuit courts of appeals to use legal scholarship in its decision making.

  19. “[T]he conventional wisdom that the Federal Circuit is less likely than other circuit courts of appeals to use legal scholarship in its decision making”

    I don’t doubt that is the conventional wisdom for some, but whom? Legal scholars, I’m guessing. I can’t say I’ve ever heard an IP practitioner or judge say anything about this.

  20. I would be interested to know what the three judge panel & en banc decision subgroups look like. My hypothesis would be that the courts are more likely to cite scholarly works when taking an opportunity to revisit or change the law in en banc decisions but tend not to do so in regular decisions.

    That might account for the percentages that Paul F. Morgan pointed out. Maybe the scholarly works are more often cited in the (by nature) more influential en banc decisions and thus affect many downstream opinions even though the works are not explicitly cited therein.

    A more complex analysis might compare scholarly citation rates to some sort of ‘opinion impact factor’ based on data from Shepard’s.

  21. From this paper: “Overall this study involves nearly 120,000 [Federal Circuit] judicial opinions, and nearly 6000 of them cite to at least one piece of legal scholarship.”

    N.B. Does not that make 95% which do not cite any legal academic output? Would that be even less if limited to patent law decisons?

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