Writs of Mandamus, Data Accessibility, and the Federal Circuit

By Jason Rantanen

Spring 2022 is roaring forward – and this semester is an especially busy one for me. I’m teaching my usual Introduction to Intellectual Property course, together with an especially large Civil Procedure class (which at Iowa is 4 credit hours), and the Iowa Innovation, Business & Law Center is running an exciting speaker series on Genetics, Law and Society.  All of this has given me a terrific opportunity to really think about procedure, law, and data.  And it’s fortuitously come at a time when several related projects are coming to fruition.  In light of that, rather than write a bunch of mini-blog posts on my current projects, I thought I’d just write about them all at once.

A few months ago, Jonas Anderson, Paul Gugliuzza and I ran a series of posts on our project examining petitions for writs of mandamus at the Federal Circuit. I’m delighted that our paper, Extraordinary Writ or Ordinary Remedy: Mandamus at the Federal Circuit, forthcoming in the Washington University Law Review, is now available for everyone to read. (As usual with SSRN, if you get an infowall, you can bypass it by clicking the skip option on the login page; it’s there, although SSRN sometimes buries it).   We find that while overall mandamus is rarely granted by the Federal Circuit, in a key area–petitions involving venue arising from Texas–that is not the case.  We argue that the reason is not because the Federal Circuit is behaving in an “exceptionalist” way, but that the issue flows from systematic flaws in the patent litigation system that the Federal Circuit has little power to fix—namely, rules of venue and judicial case assignment that encourage plaintiffs to shop not just for favorable courts, but for individual judges.  There are lots of little nuggets of data in there as well for data fiends, including on the issue of petitions for permission to appeal.  Read it here:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049186

One of the issues that we observed while writing this paper was the reality that, as Merritt McAlister had pointed out in Missing Decisions, many appeal terminations are not readily accessible to the public.  While opinions are routinely posted to federal appellate courts’ websites, non-opinion orders terminating cases rarely are (including a number of terminations of petitions for writs of mandamus).  I dug into this issue in more depth in a response essay that the University of Pennsylvania Law Review published last month called Missing Decisions and the United States Court of Appeals for the Federal Circuit, in which I compared all appeals in PACER to what the Federal Circuit actually publishes on its website, as well as what’s available in WestLaw and Lexis.  Overall, I observed that while the Federal Circuit has historically been very good at making opinions and precedential terminating orders available on its website, and has also been very good at posting Rule 36 summary affirmances since 2007, nearly all other orders terminating an appeal (including dismissals for lack of jurisdiction) were not.

I’m thus thrilled that it appears that the Federal Circuit has changed its practice.  In the last few weeks, the Federal Circuit has changed its  opinions and orders page to include dispositive orders:

The Federal Circuit publishes online all opinions, precedential orders, dispositive orders in writs petitions, Rule 36 judgments, non-ministerial orders relating to rehearing or en banc petitions or actions, dispositive orders constituting either judgment or mandate, and any errata notice or revised version for any of the preceding document types. …

This is an excellent balance between the morass of data that the court made available on its website in 2011-2014 (including orders on motions to extend time), and just posting opinions & rule 36 affirmances as that the court had previously done.  And based on my review of what they’ve been posting, they seem to be carrying through with this goal of making all dispositive orders available. These orders will provide more context for attorneys about the Federal Circuit’s decisionmaking, especially when it comes to areas that folks may not have really focused on but which were actually determinative. It’ll also ensure that legal research databases contain these orders going forward. I really want to commend Chief Judge Moore and the whole Federal Circuit, its clerks office, and the data management folks for making these key orders available.  Thanks to Dmitry Karshtedt for alerting me to this change!

That all leads into my third project in this set: an empirical study of data accessibility in published scholarship – that is, the accessibility of data once a researcher or research team has gathered all the data, analyzed it, and a law journal has published the article using it.  The draft of that paper, entitled Legal Research as a Collective Enterprise: An Examination of Data Availability in Empirical Legal Scholarship, is now available.  To conduct our study, my co-author Abigail Matthews and I, together with my amazing team of research assistants, examined all articles published in top-20 law journals by impact ranking, together with articles published in the Journal of Empirical Legal Studies, to ascertain (1) whether the article was an empirical legal study, and (2) for empirical legal studies, whether the article explained where to obtain the final dataset used in the article.  Overwhelmingly, we found that empirical studies published in law reviews don’t provide access to the data used in the study–at least by telling readers in the article itself where to find the data. Our finding validates a smaller sample observation that Chin et. al. just released finding similarly low levels of data accessibility, and we also find that factors that we expected to make a difference, such as less data available for qualitative studies, increased data availability over time, and greater data availability in the Journal of Legal Education (which has had a “data encouragement” policy since its inception) were either neutral or actually significant in the opposite direction than we expected.  While this paper may not be for all readers, if this is a subject that’s interesting to you, you can read the draft here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4057663