The End of an Epithet? An Exploration of the Use of Legal Scholarship in Intellectual Property Decisions

David L. Schwartz, IIT Chicago-Kent College of Law
Lee Petherbridge, Loyola Law School Los Angeles


The argument that the Federal Circuit is an insular court lacking in intellectual curiosity has invaded academic discourse about the court and its jurisprudence. It is rarely used as a compliment. It is rather used as an epithetic description intended to have broad explanatory power for nearly any of the many and glaring limitations that speakers and commentators contend exist in the court’s body of law. The empirical basis for the argument comes from a single finding: that between 1996 and 2000 the Second and Ninth Circuit Courts of Appeals referenced legal scholarship in their decisions in trademark and copyright cases nearly four times as often as the Federal Circuit referenced legal scholarship in its decisions in patent cases. While scholars and others have relied upon this finding to assert that the Federal Circuit’s performance is intellectually deficient, there are reasons to question whether that inference is proper. For instance, it stands in contrast to other observations that suggest the Federal Circuit behaves a lot like the regional circuits when it comes to its relationship to legal scholarship.

In this study, we explore the U.S. Supreme Court’s use of legal scholarship in its patent, trademark, and copyright jurisprudence. We report evidence of striking differences in the use of scholarship that depend on whether a decision concerns patent, trademark, or copyright law. The Court uses scholarship in patent decisions at a rate of 28%, but uses it around twice as often in its copyright (67%) and trademark (53%) decisions. While, moreover, the rates at which the Court uses legal scholarship in its copyright and trademark decisions are some of the highest observed in the Court’s entire jurisprudence, the rate at which the Court uses legal scholarship in its patent decisions is among the lowest observed. This Article discusses the significance of these observations to the empirical basis for the epithetic argument that the Federal Circuit is more insular and lacking in intellectual curiosity than other circuit courts of appeals.