This month we highlight two scholarly articles related to the Federal Circuit.

Here are the details.

A Balanced Consideration of the Federal Circuit’s Choice-of-Law Rule by Jennifer E. Sturiale

In her article, Jennifer Sturiale argues that the Federal Circuit’s choice-of-law rule “causes the court to depart from the trans-substantivity principle of procedural law and a related principle of equity in a nontransparent manner, and, in doing so, engage in substantive lawmaking that may be beyond the court’s authority.”

Sturiale characterizes the Federal Circuit’s choice-of-law rule as peculiar. The paper explains that if a legal issue pertains to patent law, the Federal Circuit applies its own law. The Federal Circuit reviews non-patent procedural issues “under the law of the particular regional circuit court where appeals from the district court would normally lie.” Finally, the Federal Circuit non-patent substantive issues “under the law of the regional circuit court in which the case originated.”

Sturiale states that the court’s choice-of-law rules derive from it’s unique jurisdiction based not in geography, but in subject matter. Sturiale notes that some scholars have argued that the Federal Circuit’s choice-of-law rules have caused inconsistency and incoherence. The article concludes that the choice-of-law rule has undermined the Federal Circuit’s objective of unifying patent law. In response, Sturiale proposes two solutions: (1) the Federal Circuit should adopt an alternative choice-oflaw rule or (2) Congress should create specialized trial courts or, at least, effect the same solution as if such specialized courts were created.

Review of Recent Veterans Law Decisions of the Federal Circuit by Angela Drake, Yelena Duterte, and Stacey-Rae Simcox

Drake et. al. state that the last summary of Veterans Law Cases was published in 2015. The article gives a brief background of Veterans Law Cases and then summarizes cases by topic. The article covers topics such as Auer Deference, the VA’s Internal Manual (M21-1), significant law changes for Vietnam Veterans, VA system delays, class actions, equitable remedies, and equal access to Justice Act decisions. The article concludes that each of the cases discussed “will have a substantial impact on the teaching and practice of veterans law, specifically with regard to administrative law principles and procedural possibilities.”