Too Human? Personal Relationships and Appellate Review
13 Pages Posted: 7 Mar 2016
Date Written: March 6, 2016
In "If You Can’t Beat ’Em, Join ’Em? How Sitting by Designation Affects Judicial Behavior," 94 Tex. L. Rev. 451 (2016), Mark Lemley and Shawn Miller marshal evidence for a post-designation deference effect — a phenomenon whereby the stringency of appellate review is substantially affected by personal relationships between judges that form when trial judges sit by designation on the appellate court. The appellate court studied by Lemley and Miller is the United States Court of Appeals for the Federal Circuit. The category of legal question that they study is patent claim construction, the judicial process of determining a patent’s literal scope that lies at the center of much patent litigation. Lemley and Miller provide intriguing support for the proposition that sitting with the Federal Circuit by designation has enabled district court judges to enjoy strikingly lower reversal rates after their Federal Circuit service. Although the case for a post-designation deference effect is not watertight, Lemley and Miller’s study raises intriguing questions about the possible generality of any such effect and about the potential desirability of closer scrutiny of appellate courts’ use of visiting trial judges. At the very least, Lemley and Miller’s evidence for appellate decision making’s responsiveness to personal contacts reminds us that judges are human. Whether judges are "too human" in relevant respects and how to respond to their humanity are questions with which society will continue to grapple.
Keywords: patent, claim construction, appellate review, legal realism, visiting judges, sitting by designation
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