Volume 100

Response Comment: Innovation, Aggregation, and Specialization

by Ori Aronson

In his fascinating critique of Federal Circuit jurisdiction, Professor Gugliuzza employs multiple tools of institutional analysis in order to explore the “dark matter” that comprises most of that Court’s docket—its unsung caseload of the nonpatent variety—and to stimulate our institutional imagination in search of a better jurisdictional structure. Through a combined analysis of its theoretical and ideological foundations, its institutional practices, and its doctrinal proclivities, Gugliuzza deconstructs the Court of Appeals for the Federal Circuit, only to imagine its reconstruction as a forum for the production of more accurate, more effective, and more just legal norms.

After locating the discussion within the context of ongoing scholarly and policy debates over the costs and virtues of court specialization as a general institutional trend in contemporary judiciaries, Gugliuzza turns to the Federal Circuit. The court, which stands out in conventional discourse as the “Supreme Patent Court,” centralizing all patent appeals under an effective near—though not complete—exemption from Supreme Court review, in fact dedicates only one third of its formal docket to intellectual property cases. Another small share of the court’s jurisdiction concerns international trade cases, but the bulk of the caseload encompasses various administrative appeals whose relation to intellectual property or to innovative market activity remains unclear—veterans’ appeals, federal-personnel appeals, government-contracts appeals, and more.

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