ABSTRACT The applicable standard of review on appeal is governed by a simple rule: appellate courts review questions of law de novo, questions of fact for "clear error, " and questions of discretion for "abuse of discretion. Despite the apparent simplicity of the rule, its application has been uneven, to state it mildly. Scholars have written extensively about the application of the rule, but have yet to consider whether the traditional rule of "deference " should be altered when the appellate court is a specialized court. Despite the dearth of legal scholarship on specialized deference, the Supreme Court is keenly interested in the topic. Recently, the Court held in two cases (both of which arose from the U.S. Court of Appeals for the Federal Circuit, a specialized court of appeals that hears all patent appeals) that specialized courts do not enjoy specialized standards of review. This Article supports those decisions. Furthermore, this Article marshalls additional support for the Courts decisions in three ways. First, this Article argues the Federal Circuit's use of de novo review has had a deleterious effect on the patent system. The use of de novo by the Federal Circuit has increased litigation, demoralized judges, and led to inferior decisions. Second, it offers an alternative to de novo review that is based in traditional principles of appellate practice. The Article concludes by arguing for a reduced role for stare decisis in standard of review cases.
Specialized Standards of Review,
Stanford Technology Law Review
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/546