The Federal Circuit has been widely criticized for unrelenting formalism. Perhaps because Congress charged the court with establishing national uniformity in areas of the law where uniformity was lacking, the Federal Circuit has often expressed a significant preference for bright-line rules. According to many critics, this preference has come at the expense of fairness. In two relatively recent decisions, the Federal Circuit has expanded its formalism into the area of contracts of adhesion, a topic it had not had the opportunity to consider before. This Note examines those two decisions, the formalistic approach taken by the Federal Circuit, and the less formal approaches taken by other courts. By examining those other approaches and taking into account relevant intellectual property policy, the Note proposes a less formal, factor-based approach to cases dealing with contracts of adhesion.
Christopher M. Kaiser,
Take It or Leave It: Monsanto v. McFarling, Bowers v. Baystate Technologies, and the Federal Circuit's Formalistic Approach to Contracts of Adhesion,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol80/iss1/19