Determining Uniformity within the Federal Circuit by Measuring Dissent and En Banc Review
26 Pages Posted: 2 May 2010 Last revised: 6 Feb 2013
Date Written: April 30, 2010
One of the major critiques of the United States Court of Appeals for the Federal Circuit is a structural one. Since the Federal Circuit is the sole appellate court for a variety of legal areas (particularly patent law), its exclusive jurisdiction causes the court's decision-making to become stagnant, entrenched, and, as a result, the court "retards the pace of common law development in some important ways."
This Article seeks to empirically test this premise by comparing the Federal Circuit's decision-making to other courts of appeals. Two metrics that provide insight as to how entrenched current thinking is in a given circuit - the percentage of dissents and en banc reviews - are measured for the Federal Circuit and for five other circuits - the Third, Fifth, Ninth, Tenth, and District of Columbia Circuit - from 1998 to present.
From this data, two results are observed. First, the Federal Circuit experiences the second highest percentage of dissents amongst the circuits studied, behind only the Ninth Circuit. Second, the Federal Circuit's percentage of en banc review is relatively low, but statistically indistinguishable amongst three other circuits studied. Many implications of these results are discussed in detail, but one thing is fairly clear - the data suggests that the Federal Circuit is no more lacking in jurisprudential diversity then other circuits and, when looking at dissents, is significantly more internally diverse in viewpoints regarding the outcomes of individual cases.
Keywords: patent, Federal Circuit, court of appeals, dissent, en banc, intellectual property
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