Specialized Trial Courts in Patent Litigation: A Review of the Patent Pilot Program\u27s Impact on Appellate Reversal Rates at the Five-Year Mark

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent law pilot program differ from those before non-pilot judges. I find that the types of cases heard before pilot judges differ. Pilot judges are less likely to rule in favor of the patentee and they are more likely to take cases to trial. Pilot judges also make different kinds of “mistakes” than non-pilot judges. Of the near three-hundred cases where the Federal Circuit rules on the substantive patent law issues on appeal, my results indicate that even controlling for other factors, judges that are part of the pilot program are not less likely to be overturned on appeal by the Federal Circuit. After discussing the empirical results, the Article proposes suggestions for reform. Patent law is unique in that it is one of the only areas of law where Congress delegates policymaking to the courts. The current piecemeal approach to patent reform by changing institutions in isolation to solve specific problems is misplaced. Multi-institutional reform of the patent system — focused on giving policymaking power to the bureaucracy to allow for less biased and more expert decision making — is needed in order to properly position courts as interpreters of the law rather than as being the vehicle primarily responsible for fashioning policy on an ad hoc basis

Specialized Trial Courts in Patent Litigation: A Review of the Patent Pilot Program\u27s Impact on Appellate Reversal Rates at the Five-Year Mark

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent law pilot program differ from those before non-pilot judges. I find that the types of cases heard before pilot judges differ. Pilot judges are less likely to rule in favor of the patentee and they are more likely to take cases to trial. Pilot judges also make different kinds of “mistakes” than non-pilot judges. Of the near three-hundred cases where the Federal Circuit rules on the substantive patent law issues on appeal, my results indicate that even controlling for other factors, judges that are part of the pilot program are not less likely to be overturned on appeal by the Federal Circuit. After discussing the empirical results, the Article proposes suggestions for reform. Patent law is unique in that it is one of the only areas of law where Congress delegates policymaking to the courts. The current piecemeal approach to patent reform by changing institutions in isolation to solve specific problems is misplaced. Multi-institutional reform of the patent system — focused on giving policymaking power to the bureaucracy to allow for less biased and more expert decision making — is needed in order to properly position courts as interpreters of the law rather than as being the vehicle primarily responsible for fashioning policy on an ad hoc basis

Political Decision-Making at the National Labor Relations Board: An Empirical Examination of the Board\u27s Unfair Labor Practice Disputes through the Clinton and Bush II Years

Does partisan ideology influence the voting of members of multi-member adjudicatory bodies at “independent agencies”? In studying the federal circuit courts of appeals, scholars have found that results of cases vary depending upon the partisan composition of the particular panel hearing a case. Few scholars to date, however, have systematically studied whether partisan panel effects occur in administrative adjudication. In this Article, I explore the impact that partisan ideology and panel composition have on the vote choices of an administrative agency rumored to be one of the most partisan: the National Labor Relations Board (“NLRB”). Employing an original dataset of close to 3,000 NLRB decisions from the William Jefferson Clinton and the George W. Bush (“Bush II”) administrations (1993-2007), this Article presents one of the few recent studies of voting patterns at the NLRB on unfair labor practice disputes. I find that the propensity of a panel to reach a decision favoring labor increases monotonically with each additional Democrat added to the panel. I also find that the partisanship effect is generally asymmetric, meaning that the addition of a single Democrat to an otherwise Republican panel increases the propensity to vote in labor’s favor more so than the addition of a Republican to an otherwise Democratic panel. Homogenous Republican panels behave in especially partisan ways. I further find that political actors—such as Congress, the President, and the appellate courts—fail to have a direct impact on NLRB unfair labor practice decisions; rather, the decision of the lower court Administrative Law Judge (“ALJ”) and the partisan ideology of the Board have the most impact in influencing whether the NLRB rules for or against labor. These findings have significant implications for a number of controversies, including debates about agency independence as well as questions concerning political diversity on agencies that have multi-member adjudicatory bodies who do all or primarily all of their work through adjudication as opposed to rulemaking

Statutory Interpretation and Chevron Deference in the Appellate Courts: An Empirical Analysis

What statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, precedent, policy, and practical considerations. It then compared how use of those methods varied depending on whether or not the appeals court expressly cited or applied Chevron. Most notable was how appellate courts used precedent and policy in contrasting ways when ruling on Board statutory interpretation cases. While precedent was used more when courts reversed the Board’s pro-employee interpretation to reach an anti-employee outcome, courts referenced policy more to uphold Board rulings that were pro-employee in orientation. Both Democrat- and Republican-majority courts exhibited different tendencies in their choice of methods as well. When ruling on anti-employee interpretations, Democrat-majority courts often cited and relied on text more than Republican-majority courts. In addition, Republican-majority courts disproportionately used substantive canons to uphold anti-employee interpretations while Democrat-majority courts favored language canons when reversing such appeals. The study also yielded interesting observations about Chevron deference. Courts citing and applying Chevron had much higher agency-win rates than when Chevron was not used. Courts overwhelmingly cited Chevron or employed a Chevron-like “reasonableness” standard more when they upheld the agency’s statutory interpretation than when they reversed the agency, thus suggesting that courts may use Chevron to cabin judges’ ideological proclivities. The study also revealed a divergence in statutory methods depending on how a court employed Chevron. Courts expressly citing the Chevron two-step framework cited and relied on the statutory text and employed language canons more in the writing of the opinion than when they did not specifically cite Chevron. In addition, Republican-majority courts upholding Board interpretations often employed substantive canons more when citing Chevron than when not. Chevron-citing courts also disproportionately invoked policy considerations compared to non-Chevron-citing courts when upholding the Board’s interpretation. Courts declining to cite or apply Chevron at all had different tendencies. Those that declined to cite Chevron, or employ even a similar Chevron-like “reasonableness” standard, were more likely to cite precedent. Substantive canons were also employed to reverse the Board’s interpretation more by courts that declined to apply Chevron than courts that applied Chevron or a Chevron-like reasonableness standard. Although the study is limited to one area of law and to the workings of a single agency—and one of the most politically charged agencies at that—it offers fresh insight into how empirical analysis can be used to look beyond the black box of federal court statutory interpretation and Chevron deference to see what shapes judicial opinions in their review of agency statutory interpretations

An Empirical Examination of Agency Statutory Interpretation

How do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required—between policy coherence, stability and democratic accountability—is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Rather than acting like a court, adjudicative agencies like the NLRB should leverage their expertise to arrive at an interpretation that best effectuates the purpose of the statute. For an agency like the NLRB that makes decisions almost exclusively through adjudication this may necessitate that the agency reveal its statutory interpretation in a more transparent fashion through rulemaking

Presidential Ideology and Immigrant Detention

In our nation’s immigration system, a noncitizen charged with deportability may be detained pending the outcome of removal proceedings. These individuals are housed in remote facilities closely resembling prisons, with severe restrictions on access to counsel and contact with family members. Due to severe backlogs in the adjudication of removal proceedings, such detention may last months or even years. Many of the noncitizens initially detained by enforcement officials have the opportunity to request a bond hearing before an administrative adjudicator called an immigration judge (“IJ”). Although these IJs preside over relatively formal, on-the-record hearings and are understood to exercise “independent judgment,” concerns have been raised that they are subject to control by political superiors in the executive branch. This Article analyzes approximately 780,000 custody decisions by IJs from January 2001 through September 2019 to explore the question of political influence over these adjudicators. Its bivariate analyses based on cross-tabulations, without additional controls, show that noncitizens have fared worse in bond proceedings during the Trump administration than they did during the prior two presidential administrations. Importantly, these differences were not limited to decisions rendered by Trump-appointed IJs. Rather, all IJs—regardless of the president whose Attorney General appointed them—have been more likely to deny bond or impose a higher bond amount during the Donald Trump Era than during the Barack Obama or George W. Bush (“Bush II”) Eras. Although this analysis does not control for the myriad of demographic, political, economic, geographic, and institutional factors that could impact decision-making, these findings call into question the political independence of IJs making decisions on noncitizen bonds

An Empirical Study of Political Control over Immigration Adjudication

Immigration plays a central role in the Trump Administration’s political agenda. This Article presents the first comprehensive empirical assessment of the extent to which immigration judges (IJs), the administrative officials charged with adjudicating whether a given noncitizen will be deported from the United States, may be influenced by the presidential administration’s political preferences. We constructed an original dataset of over 830,000 removal proceedings decided between January 2001 and June 2019 after individual merits hearings. First, we found that every presidential administration—not just the current one—disproportionately appointed IJs with backgrounds in the former Immigration and Naturalization Service, the Department of Homeland Security, or the Department of Justice—agencies responsible for prosecuting noncitizens. Second, using logistic regression to control for more than a dozen variables that might impact a decision to order removal, we found that the identity of the administration that appointed an IJ is not a statistically significant predictor of the likelihood of an IJ ordering removal. That is, after controlling for other variables, we did not find that Trump-appointed judges were any more likely to order removal than appointees of other Presidents. Finally, we found that the presidential administration in control at the time of the decision is a statistically significant predictor of removal rates in certain circumstances. For example, IJs who were appointed by President George W. Bush (Bush II) were more likely to order removal during the Trump presidency than during prior administrations. Specifically, when all other variables were held constant, Bush II-appointed IJs were 22% less likely to order removal during the Obama presidency than during the Trump presidency and 22% less likely to order removal during the Bush II presidency than during the Trump presidency. These results suggest that a sitting President may exert some measure of direct or indirect influence over IJs’ removal decisions, undermining the assumption of administrative adjudicators’ independence

Toward National Uniformity for FDA-Regulated Products

In this paper, I will argue that national uniformity should be granted to all FDA-regulated products and should include preemption of both state labeling and safety standards as well as state product liability laws. Cosmetics and food should be treated the same as FDAMA treats OTC drugs. Although the FDA has developed different regulatory regimes for each product, the FDA has established the optimal standards for all of its products, and states should not interfere to preclude harmonization. Congress should also prevent state courts and lay juries from interfering with the goals of the FDA to both ensure the safety of products, while at the same time, encourage innovation. The Supreme Court has said, "state regulations can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." Congress needs to recognize that state tort claims impose requirements for safety and effectiveness that can be just as detrimental to the goals of national uniformity as state labeling and safety standards. The benefits of national uniformity for FDA-regulated products can never be fully realized if state tort suits interfere as an additional regulatory tool to monitor safety. FDAMA itself is inherently contradictory, because the explicit allowance of state tort suits conflicts with the Act's goal of national uniformity. Manufacturers are caught in a "physical impossibility," because even if manufacturers comply with nationally uniform FDA standards, the threat of tort liability results in an incentive to overwarn and to include information that departs from a uniform FDA standard

An Empirical Examination of Adjudications at the National Labor Relations Board

Understanding empirically how administrative agencies work is crucial to designing an optimal political system. In this dissertation, I study the National Labor Relations Board’s (“NLRB”) administrative adjudication decisions during the Clinton and second Bush presidencies. In addition to gathering necessary information about how a particular agency actually works, I examine the impact that partisanship has in impacting case outcomes, and in particular how partisan panel effects affect case outcomes. I also look at how other political actors, such as the reviewing court of appeals, oversee agency decisions. Further, the study is one of the first to empirically look at how agencies go about the business of interpreting governing statutes. Such empirical information does much to inform our understandings about the role of partisanship in agency decisionmaking. Moreover, it informs our understanding of how multi-member adjudicative bodies make decisions as well as what should be the appropriate relationship between reviewing courts and administrative agencies