68 Am. U. L. Rev. 1425 (2019).
* Jamie D. Underwood is a partner in the Washington, D.C. office of Latham & Watkins LLP who specializes in intellectual property and international trade litigation and policy. She is also the President Elect of the Federal Circuit Bar Association. Ms. Underwood extends a special thanks to Brittany Bruns for her invaluable assistance in preparing this Area Summary, as well as to the staff of the American University Law Review for their stellar editorial work.
Introduction
The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) is responsible for adjudicating a wide range of subjects—only one of which is international trade.1See generally 28 U.S.C. § 1295(a) (2012). Historically, trade cases have occupied an extremely small portion of the Federal Circuit’s jurisprudence.2Statistics, U.S. Ct. of Appeals for the Fed. Cir., https://www.cafc.uscourts.gov/ the-court/statistics (last visited May 20, 2019) (providing statistics by source of appeal from 1997 to 2018). For example, from October 2017 to September 2018, out of the 1530 Federal Circuit appeals docketed, just a little over four percent concerned matters from the U.S. International Trade Commission (“ITC” or “Commission”), the U.S. Court of International Trade (“CIT”), or the U.S. Department of Commerce (“DOC”).3U.S. Ct. of Appeals for the Fed. Cir., Year-to-Date Activity as of December 31, 2018 (Sept. 30, 2018), https://www.cafc.uscourts.gov/sites/default/files/the-court/statistics/YTD-Activity-December-2018.pdf (reflecting that sixty-seven trade-related matters were docketed at the Federal Circuit in 2018—twenty-one ITC, forty-five CIT, and one DOC). The impact of these cases upon trade policy and the economy, however, is far more immense. Indeed, the frequency and depth of discussion on trade issues in 2018 was remarkable—from courtrooms to congressional chambers, on television, and in tweets.
The 2018 term of the Federal Circuit included nineteen precedential opinions involving international trade. Part I examines those opinions addressing Section 337 of the Tariff Act of 1930, as amended (“Section 337”),4Pub. L. No. 71-361, § 337, 46 Stat. 590, 703 (codified as amended at 19 U.S.C. § 1337). with a focus on the strategic role that remedies can play in achieving party goals. Part II explores a rare safeguard case testing the scope of Presidential power to issue tariffs. Part III summarizes those opinions addressing import classification, which reflect a strong affirmance rate for the CIT. Part IV surveys those opinions addressing antidumping (“AD”) and countervailing duties (“CVD”)—an area that saw considerable activity.