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Article
Legal Scholarship and the United States Court of Appeals for the Federal Circuit: An Empirical Study of a National Circuit (with L. Petherbridge)
Berkeley Technology Law Journal (2011)
  • David L. Schwartz, Chicago-Kent College of Law
Abstract

It is conventional wisdom that the United States Court of Appeals for the Federal Circuit, a court whose jurisdiction is defined by subject matter rather than by geography, is less likely than other circuit courts of appeals to use legal scholarship in its decision-making. This common belief is regularly used to substantiate a well-worn criticism of the Federal Circuit specifically, and of national courts generally; namely, that they are substantially more insular and somehow less intellectually curious than the regional circuit courts of appeals. We were therefore very surprised to find how little empirical support the conventional wisdom finds in legal literature. A review of the existing literature reveals that relatively little is known about the use of legal scholarship by the Federal Circuit - and by analogy courts whose jurisdiction is defined by subject matter rather than geography - and perhaps even less is known about how the Federal Circuit’s use of legal scholarship compares to that of the regional circuits.

The study reported in this Article contributes new and original information and analysis. It empirically compares the Federal Circuit’s use of legal scholarship with that of the regional circuit courts of appeals. Perhaps the most significant finding is that the Federal Circuit’s use of legal scholarship appears quite similar to that of the regional circuits, suggesting that the court is not the outlier that many presume. This finding places the conventional wisdom into serious doubt and has obvious implications for the evaluation of other proposals for subject matter-bounded courts.

Publication Date
2011
Citation Information
Legal Scholarship and the United States Court of Appeals for the Federal Circuit: An Empirical Study of a National Circuit, 26 Berkeley Technology Law Journal 1561 (2011) (with L. Petherbridge).