The Federal Circuit has faced no shortage of criticism in its role as the expert patent court, including frequent Supreme Court reversals and calls for abolition of its exclusive patent jurisdiction (most prominently from Seventh Circuit Chief Judge Diana Wood, though she was far from the first). In Understanding the Federal Circuit: An Expert Community Approach, Laura Pedraza-Fariña (Northwestern Law) argues that the sociology literature on "expert communities" helps explain the Federal Circuit's "puzzling behaviors."
She suggests that "[t]he drive that expert communities exhibit for maximal control and autonomy of their knowledge base . . . explains why the Federal Circuit is less likely to defer to solutions proposed by other expert communities, such as the PTO," as well as "to defy non-expert superior generalists, such as the Supreme Court." Expert communities also engage in codification of their domains to demonstrate their expertise, manage internal dissent, and constrain subordinate communities, and Pedraza-Fariña argues that this tendency explains the Federal Circuit's frequent preference for rules over standards. (As she notes, this is related to Peter Lee's argument that the Federal Circuit adopts formalistic rules to limit the extent to which generalist judges must grapple with complex technologies.) Finally, expert communities seek to frame borderline problems as within their area of control, and to place inadequate weight on competing considerations outside their expertise—qualities that critics might also pin on the Federal Circuit.
There are a lot of interesting strands in here, especially for those unfamiliar with the sociology literature Pedraza-Fariña canvases. (Her synthesis of this literature may well be a scholarly contribution in itself.) This article also prompts a lot of questions for further thought—both in the context of the Federal Circuit and beyond—of which I'll briefly discuss three.
First, is this characterization of the Federal Circuit still accurate (if it ever was)? Pedraza-Fariña's description of the Federal Circuit as formalist and non-deferential certainly reflects a large body of scholarship (see, e.g., John Thomas (2003), Arti Rai (2003), Tim Holbrook (2003), Craig Nard (1995), and much of the briefing in Teva v. Sandoz). (This view is not without dissent: Tun-Jen Chiang has argued that "[o]nce we look beyond the rhetoric, the Federal Circuit's jurisprudence is just as flexible and indeterminate as any other area of law.") But today's Federal Circuit is quite a different court than the one on which these labels were initially pinned—7 of the 12 active judges were appointed since 2010. My sense is that the court's culture and jurisprudence has changed significantly since ten years ago, though I don't think there is a scholarly consensus about the Federal Circuit in its fourth decade. If the court has changed (such as by being less formalist), can this model help explain that, or would it mean that the court views itself less as an expert patent community?
Second, how does this model apply to the many non-patent areas of Federal Circuit jurisdiction? Does the court act like an expert community in those areas? Pedraza-Fariña states that patent law is the Federal Circuit's "perceived area of expertise" and she notes that non-patent areas are "characterized by high affirmance rates and deferential standards of review." But Paul Gugliuzza argues that there are "interesting parallels between critiques of Federal Circuit patent jurisprudence and critiques of Federal Circuit law in other areas, such as recent Supreme Court decisions overturning bright-line rules adopted by the Federal Circuit in veterans cases." In what cases does specialization lead to perceived expertise?
Third, does this model describe behaviors in other legal communities of expertise? Pedraza-Fariña suggests testing her model on other "expert courts" such as bankruptcy and tax courts. I've also enjoyed pondering her model's application to a variety of communities I'm familiar with beyond expert courts; for example, her overview of the sociology of professions competing for jurisdictional control reminded me of the blog discussions of whether you need a particular background to do patent scholarship. And perhaps most obviously, does this model apply to the behavior of administrative agencies, which are often designed to develop real expertise in a subject? If you have thoughts on other areas in which this model might apply, feel free to add them in the comments below.
