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Home Archive Volume 63 Volume 63, Issue 4 FOREWORD: Interesting Times at the Federal Circuit
FOREWORD: Interesting Times at the Federal Circuit

By The Honorable Kathleen M. O'Malley  | 63 Am. U. L. Rev. 949 (2014)

The decision to leave the U.S. District Court for the Northern District of Ohio and move to the U.S. Court of Appeals for the Federal Circuit was not an easy one. Yes, I had many powerful reasons to make the move: (1) I was honored to be nominated to a superior court after serving as a trial judge; (2) I had great respect for the judges on the Federal Circuit and recognized the increasing importance of the work they were doing in the intellectual property field; (3) I was aware that the other areas of law over which the Federal Circuit exercises appellate jurisdiction were interesting and challenging; (4) I, like others, believed it was time to add at least one district court judge to the ranks of the judges on the Federal Circuit; (5) after more than sixteen years on the district court bench, I was intrigued by the possibility of a new challenge; and (6) most importantly, I knew that moving to the Federal Circuit would allow me to live in the same city as my husband, who lived and worked in Washington, D.C. I also had some trepidation about the move—not about living with my husband George, of course—but about other things.

Life on the district bench is fast-paced and ever-changing.  District court judges need to be versed in approximately sixty different substantive areas of federal law—criminal and civil.  They need to familiarize themselves with the state law applicable in the districts within which they sit and often must apply the law of other states, even that of states far from their districts.  They deal daily with the Federal Rules of Civil Procedure, Criminal Procedure, and Evidence; with issues governing venue, personal jurisdiction, subject matter jurisdiction, standing and conflicts of law, sentencing guidelines, and forfeiture statutes; and are often called upon to respond to emergency filings or requests to authorize electronic surveillance in a criminal case.  No two days are alike, and the nature of each is unpredictable.

In fulfilling their duties, district judges regularly interact with parties, counsel, and the public—the latter through oversight of petit and grand juries as well as through their ceremonial functions and obligations, such as the swearing-in of new citizens.  Trial judges are not only exposed to those local counsel who appear regularly before them but are privileged to interact with parties and counsel from all over the world, who often appear in complex, consolidated, or multi-district litigation matters.

In short, life on the district bench is never dull and rarely lonely, and I loved it. This was the source of my concern. I feared that life on the Federal Circuit, or any circuit court, would be quiet, even monastic. I had visions of an isolated life filled with nothing but reading and writing. And, I feared that I might find the Federal Circuit’s jurisdictional reach too limiting; I wondered whether I would ever again tangle with thorny constitutional, jurisdictional, and procedural issues. My fears were not well-founded.

In fact, I sometimes wonder whether I am living a life defined by the ancient curse, “[m]ay [you] live in interesting times.” The last three years certainly have been an interesting time to serve on the Federal Circuit, and there seems little chance that will change soon. The reasons are varied; I will touch on just a few.

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