This month we highlight four recent articles relevant to the Federal Circuit and the areas of law under its jurisdiction. All four articles address reform: judiciary reform, intellectual property reform, patent reform, and veterans law reform.
Peter Menell & Ryan Vacca, Revisiting and Confronting the Federal Judiciary Capacity ‘Crisis’: Charting a Path for Federal Judiciary Reform, SSRN (Sept. 3, 2019)
Capacity constraints have plagued the federal judiciary system for over a century. In this article, professors Peter Menell and Ryan Vacca detail the history of an overloaded appellate system and prior efforts to reform it, most notably a failed effort to create a “National Court of Appeals” in the 1970s and the related, successful effort to create the Federal Circuit in 1982. They posit a potential solution in creating “a commission tasked with developing a judiciary reform act that would not go into effect until 2030.” The delayed implementation would effectively create a “veil of ignorance” such that commission members could focus on the best interests of the judiciary and not on politics.
Jay Kesan & Andres Gallo, The Political Economy of Intellectual Property Reforms, SSRN (Nov. 10, 2019)
How do economics and politics inform intellectual property reform? Professors Jay Kesan and Andres Gallo attempt to answer this question by linking intellectual property reform to the lobbying power and economic clout of IP stakeholders, including technology companies. The article further provides “an overview of the political actors and legal institutions that participate in the creation of IP policy and describe the types of entities that are most interested in driving IP policy.” One such legal institution, of course, is the Federal Circuit.
Samuel Ernst, Radical Patent Law Reform in a Common Law Enabling System: A Metahistory, SSRN (Oct. 3, 2019)
In this chapter of a forthcoming book, Golden Gate University law professor Samuel Ernst dives into the history of patent law and the Federal Circuit. The court, he argues, was created to “strengthen patent rights” against an otherwise hostile judiciary. Despite these intentions, he continues, the court’s rulings gave rise to a “patent thicket” of non-practicing entities, which in turn, he argues, stifled innovation. The Supreme Court, he explains, for its part has “enact[ed] radical and effective patent litigation reform through case law.” He offers suggestions on legislative reform or even a “highly codified civil law system” that might settle some tensions between the Federal Circuit and Supreme Court.
Jennifer Oliva, Representing Veterans, 73 SMU L. Rev. F. ___ (forthcoming 2020), SSRN (Oct. 1, 2019)
Why would the federal government deny military veterans a procedural safeguard that civilians routinely enjoy? In this article, Seton Hall law professor Jennifer Oliva describes the denial of veterans’ rights, including the right to counsel and to pursue remedies for in-service injuries, along with other instances of “the law’s anomalous treatment of veterans insofar as basic due process rights are concerned.” As part of her analysis, she explains how the appellate structure, “which demands that veterans obtain at least two appellate court rulings [from the Court of Appeals for Veterans Claims and the Federal Circuit] before seeking review from [Supreme Court], is not only unusual, it is frustrating insofar as it adds another, time-consuming layer to a claims decision process that is already laborious, riddled with error, and defined by delay.” “Making matters worse,” she explains, “veterans often have no right whatsoever to appeal CAVC decisions due to the Federal Circuit’s circumscribed appellate jurisdiction over VA claims, which is limited to reviewing legal issues.” She concludes with several arguments for reform, including extending the right to legal representation during the initial stage of the VA claims process.