Scholarship

This month we highlight three recent papers addressing the Federal Circuit and the areas of law under its jurisdiction. One paper promotes the idea of allowing agencies, such as the Veterans Administration, to aggregate individual claims, such as through class action lawsuits. Another paper focuses on the impact of the Supreme Court’s affirmance of the Federal Circuit’s conclusion that the statutory ban on registration of immoral marks is unconstitutional. And the third paper proposes that appellate courts defer to jury determinations of fair use of copyrights—a standard of review the Federal Circuit notably did not use in its consideration of the dispute between Google and Oracle now pending at the Supreme Court.

Adam S. Zimmerman & Michael Sant’Ambrogio, Collective Adjudication and Administrative Justice, Oxford Handbook of Administrative Justice (forthcoming), SSRN (Nov. 18, 2019)

In this forthcoming book chapter, Adam Zimmerman and Michael Sant’Ambrogio explore “how administrative agencies in different countries use aggregate procedures to hear common claims brought by large groups of people.” As part of their analysis, they maintain that aggregate procedures can “provide uniform and consistent application of the law, particularly in cases that ask for remedies like injunctions or declaratory relief.” As an example, they point to the decision by the Federal Circuit in Ebanks v. Shulkin, 877 F.3d 1037, 1040 (Fed. Cir. 2017). There, the court “denied an individual veteran’s petition to review his claim for unreasonable delay, reasoning that a class action in the Veterans Courts would provide a more appropriate format to hear his challenge” and that “individual petitions would produce only inconsistencies and ‘line-jumping’ that would aggravate delays throughout the VA system.”

Robert L. Greenberg, Cannabis Trademarks and the First Amendment, SSRN (Nov. 11, 2019)

Given the Supreme Court’s holding in Iancu v. Brunetti that the First Amendment renders the ban on immoral trademarks unconstitutional, Robert Greenberg has considered the question of whether the U.S. Patent and Trademark should or will issue cannabis trademark registrations. As part of his consideration of this question, he notes that “plant names are traditionally not granted trademark registrations, as they are frequently considered to be the name of the item and not a descriptive, identifying mark.” He then reviews the Federal Circuit’s caselaw “making a clear distinction between the name of the product and the branding thereon.” He ultimately concludes that “[t]he continued ban on cannabis-related trademarks cannot stand.”

Amanda Reid, Safeguarding Fair Use Through First Amendment’s Asymmetric Constitutional Fact Review, SSRN (Nov. 19, 2019)

In this article, Amanda Reid “proposes a novel procedural safeguard for copyright fair use.” She seeks to require appellate courts to “apply an asymmetric review of fair use determinations as a constitutional fact.” In particular, in her view “fair use determinations should be reviewed de novo only when the free-speech-claimant does not prevail in the lower court.” Thus, for example, she would have required the Federal Circuit to defer to the jury’s conclusion in Google v. Oracle that Google engaged in fair use when it copied parts of Oracle’s software interface. As Reid explains, the Federal Circuit reviewed de novo the ultimate question of fair use “on the ground that the mixed nature of the fair use inquiry was ‘legal in nature.’”