74 Am. U. L. Rev. 877 (2025).
Abstract
Day in and day out, the U.S. Court of Appeals for the Federal Circuit decides cases with millions, if not billions, of dollars at stake. Yet the court is often ignored in studies of judicial behavior. This Article, prepared for the American University Law Review‘s annual Federal Circuit symposium, remedies that omission, presenting a novel, empirical study of voting and opinion-writing by judges on the Federal Circuit.
Our primary aim is to test several widely held beliefs about the court’s judges: for instance, that judges with patent backgrounds write more opinions in patent cases and that left-right politics explain little about judicial behavior given the court’s semi-specialized jurisdiction. We also empirically examine some of the assertions made in the ongoing investigation into the competency of ninety-six-year-old Federal Circuit Judge Pauline Newman.
Our results confirm some conventional wisdoms but upend others. They make clear that expertise and ideology play some role in explaining judicial behavior on the Federal Circuit. But they also highlight the difficulty of developing a “grand unified theory” of voting and opinion-writing by the court’s judges. Unlike on the regional circuits and, especially, the Supreme Court, where political party affiliation explains a lot, “ideology” on the Federal Circuit seems to mean something different. As for Judge Newman: She’s an exceptionally frequent dissenter, and she tends to dissent from certain colleagues more than others. But numbers alone cannot fully tell the complex story that led to her suspension from the court.
* James E. Beasley Professor of Law, Temple University Beasley School of Law.
** Robert Howell Hall Professor of Law, Director of the Emory Center for Law and Social Science, and Director of the Emory Center on Federalism and Intersystemic Governance, Emory University School of Law.
*** David L. Hammer and Willard L. “Sandy” Boyd Professor and Director of the Iowa Innovation, Business & Law Center, University of Iowa College of Law. For helpful comments, thanks to Tonja Jacobi, Andrew Jennings, Matthew Lawrence, Clarisa Long, Mark Nevitt, Matthew Sag, Alexander Volokh, Martin Sybblis, Alex Zhang, and participants at the Canadian Law and Economics Association annual conference at the University of Toronto Faculty of Law, the American Law and Economics Association Annual Meeting at the University of Michigan School of Law, and The Patent Conference at the University of San Diego School of Law.