Pluralism on Appeal
Georgetown Law Journal Online, Vol. 100, p. 36, 2012
8 Pages Posted: 20 Oct 2012
Date Written: October 19, 2012
In a thoughtful response to my article, Rethinking Federal Circuit Jurisdiction, Ori Aronson notes that judges “work in context, be it social, cultural, or...institutional,” and that “context matters” to their decisions. Indeed, the primary aim of my article was to spur a conversation about the context in which the judges of the Federal Circuit — who have near plenary control over U.S. patent law — decide cases. That context includes many matters in narrow areas of law that bear little relation to the innovation and economic concerns that should animate patent law. To inject those concerns into the court’s province, my article introduced the concept of limited specialization, under which the Federal Circuit would retain exclusive jurisdiction over patent cases (and possibly a few other areas) while also being granted nonexclusive jurisdiction over a variety of cases that are normally appealed to the regional circuits.
In a similarly insightful response to my article, Cecil Quillen is doubtful that limited specialization would fix what he calls “the Federal Circuit problem.” Instead, he prefers the model of “polycentric decision making” embraced by, most notably, Professors Craig Nard and John Duffy in their important and provocative article, Rethinking Patent Law’s Uniformity Principle. Under that model, multiple appellate courts would decide patent cases, permitting inter-court dialogue and enhancing the possibility for self-correction when one court makes a mistake.
Those interested in rethinking Federal Circuit jurisdiction do not face a binary choice between polycentrism and limited specialization. Rather, there are countless ways in which the court’s jurisdiction could be altered to achieve various normative goals. For example, Congress recently expanded Federal Circuit jurisdiction to include cases where the patent issue arises only in a counterclaim. To further the goals of enhancing legal uniformity and deterring forum shopping, the statutory revision overruled a decade-old Supreme Court decision that directed cases involving patent law counterclaims to the regional circuits. Also, Congress has recently considered removing the Federal Circuit’s jurisdiction over veterans cases, with some arguing that this reform would speed up the protracted benefits process. To evaluate these and other possible proposals for jurisdictional reform, we need a sustained conversation about how institutional structure may impact substantive outcomes.
I therefore begin this Reply by emphasizing how my article advances that discussion by incorporating the Federal Circuit’s nonpatent docket into the institutional analysis. By considering nonpatent cases, my project frames “the Federal Circuit problem” in a new and, I believe, more comprehensive way than it has been framed by Mr. Quillen and others. I then consider an observation made by Professor Aronson in his response, which captures the intuition supporting limited specialization: that generalists — those who have a broad background in a variety of fields — might be the best specialists. This insight, I contend, highlights how many proposals to reform patent law’s appellate structure share a common belief that pluralism is good. However, it also illuminates two difficult questions we must continue to explore. First, what kind of pluralism is better, a plurality of decision-making bodies or a plurality of jurisdictional areas? And second, how much pluralism do we need?
Keywords: Federal Circuit, jurisdiction, patent law
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