The Green Bag at first appears as an oxymoron – known as an “entertaining journal of law.” The published articles often rely heavily on satire to make their points. Hastings Professor Robin Feldman has a new article coming out in the Green Bag titled “Coming of Age for the Federal Circuit.” Her article though is quite serious and which begins as follows:
This has been a watershed year for the Federal Circuit. The Chief Judge, who had gained a reputation for commenting publicly about pending legislation and cases, resigned after a scandal involving the appearance of favoritism towards a lawyer who appears before the court. The Circuit fared no better in the more traditional measure of approval from the court above. The Supreme Court granted certiorari in six patent cases arising out of the Federal Circuit this term—the largest number the Justices have accepted since the Circuit’s creation in 1982. Moreover, in case after case this year, the Justices soundly and unanimously rejected the Federal Circuit’s logic. . ..
Characterizing these struggles as a debate about rules and standards misses the heart of the conversation that is occurring. Rather, a strong message echoes through the six Supreme Court decisions. It is a message about restraint, about carefully constructed logic, and about coming into the fold of judicial decision-making. This is not to suggest that the Supreme Court itself is always successful in following these aspirational goals. Nevertheless, the message is clear. This is a coming of age for the Federal Circuit–or at least the Supreme Court seems determined to coax, cajole and, when necessary, club the Federal Circuit into coming of age.
This article examines the messages evident in recent Supreme Court decisions and evaluates whether the Court appears to be gaining ground. Although some indications are positive, others suggest that the Federal Circuit may not be entirely ready to relinquish its role as the judiciary’s enfant terrible.
Read it here.