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Buffalo Law Review

First Page

83

Document Type

Article

Abstract

From time to time, a federal court of appeals may want the Supreme Court to take a case because it is stuck: there is an unresolved issue that is important to the day-to-day administration of justice, but an en banc sitting would be futile. The Supreme Court, however, has a haystack problem: it receives several thousand certiorari petitions each year, of which approximately 1% receive plenary review. The literature suggests that the selection of the certworthy needles in this petition haystack is a black-box process affected by discretion and situational factors that make timely review unpredictable and difficult to obtain.

Among the federal appellate courts, the difficulty of securing timely Supreme Court review may be the most problematic for the U.S. Court of Appeals for the Federal Circuit, which was established to create and maintain a uniform, coherent body of patent law precedents. Because of its exclusive appellate jurisdiction in patent cases, if the Federal Circuit gets stuck, its impact is felt nationwide. Compared to the other circuits, the Federal Circuit might be more dependent on the Supreme Court in some ways, because there is no intercircuit percolation of patent law. Ironically, the Federal Circuit may have more difficulty signaling when review is necessary because there are no circuit splits in patent law.

Accordingly, using the Federal Circuit as a case study, this Article proposes the creation of a mechanism for bypassing the Supreme Court’s certiorari haystack to secure timely review of cases that are important to the day-to-day administration of justice. Specifically, Congress should give the judges of the Federal Circuit the power to periodically invoke (e.g., once a year)—through a majority vote of its regular active judges—either mandatory appellate jurisdiction or mandatory certified question jurisdiction at the Supreme Court to secure review of a case or a discrete issue. By providing a supplemental pathway to Supreme Court review that can be invoked directly by the Federal Circuit judges themselves, the proposal effectively sets up a “hotline” between the two courts and reserves a slot on the high court’s plenary docket for a case that was selected with the benefit of the Federal Circuit’s expertise. As a result, a tighter, more robust feedback loop is created between the generalist Supreme Court that makes broad pronouncements and the specialist appellate court that is charged with operationalizing those pronouncements for day-to-day adjudication.

Because all appellate courts (not just the Federal Circuit) have an interest in obtaining timely Supreme Court intervention when necessary, this Article might also be of interest to audiences beyond patent law who are seeking ideas for reforming the Supreme Court.

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