Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon's work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.
{"title":"Does Docket Size Matter? Revisiting Empirical Accounts of the Supreme Court's Incredibly Shrinking Docket","authors":"Michael Heise, M. Wells, Dawn M. Chutkow","doi":"10.2139/ssrn.3565279","DOIUrl":"https://doi.org/10.2139/ssrn.3565279","url":null,"abstract":"Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon's work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2020-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87057631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article is an empirical study of the evidence district courts rely upon when invalidating patents. To construct our dataset, we collected every district court ruling, verdict form, and opinion (whether reported or unreported) invalidating a patent claim over a six-and-a-half-year period. We then coded individual invalidity rulings based on the prior art supporting the court’s decision, observing 3320 invalidation events relying on 817 distinct prior art references. The nature of the prior art relied upon to invalidate patents is relevant to two distinct sets of policy questions. First, this data sheds light on the value of district court litigation as an error- correction tool. As prior work has shown, the public interest in revoking erroneous patent grants depends on the reason those grants were undeserved. Second, this data sheds light on the feasibility of discovering invalidating prior art during patent examination. Depending on the ease of finding the relevant prior art, it may or may not be cost effective to replace patent litigation with a different approach to error correction, such as investing more effort in examination-stage scrutiny. The conclusions here are mixed. On one hand, invalidations for lack of novelty bear many indicia of publicly beneficial error correction. Anticipation based on obscure prior art appears to be quite rare. When it comes to obviousness, however, a significant number of invalidations rely on prior art that would have been difficult or impossible to find at the time of invention. This complicates—though does not necessarily refute—the traditional view that obviousness challenges ought to be proactively encouraged.
{"title":"Prior Art in the District Court","authors":"Stephen Yelderman","doi":"10.2139/SSRN.3286022","DOIUrl":"https://doi.org/10.2139/SSRN.3286022","url":null,"abstract":"This Article is an empirical study of the evidence district courts rely upon when invalidating patents. To construct our dataset, we collected every district court ruling, verdict form, and opinion (whether reported or unreported) invalidating a patent claim over a six-and-a-half-year period. We then coded individual invalidity rulings based on the prior art supporting the court’s decision, observing 3320 invalidation events relying on 817 distinct prior art references. \u0000 \u0000The nature of the prior art relied upon to invalidate patents is relevant to two distinct sets of policy questions. First, this data sheds light on the value of district court litigation as an error- correction tool. As prior work has shown, the public interest in revoking erroneous patent grants depends on the reason those grants were undeserved. Second, this data sheds light on the feasibility of discovering invalidating prior art during patent examination. Depending on the ease of finding the relevant prior art, it may or may not be cost effective to replace patent litigation with a different approach to error correction, such as investing more effort in examination-stage scrutiny. \u0000 \u0000The conclusions here are mixed. On one hand, invalidations for lack of novelty bear many indicia of publicly beneficial error correction. Anticipation based on obscure prior art appears to be quite rare. When it comes to obviousness, however, a significant number of invalidations rely on prior art that would have been difficult or impossible to find at the time of invention. This complicates—though does not necessarily refute—the traditional view that obviousness challenges ought to be proactively encouraged.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2019-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79292103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Acknowledgments","authors":"Jan M. Ziolkowski","doi":"10.11647/obp.0149.06","DOIUrl":"https://doi.org/10.11647/obp.0149.06","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73305501","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"2. The Juggler by Jingoism: Nazis and Their Neighbors","authors":"J. Ziolkowski","doi":"10.11647/OBP.0149.02","DOIUrl":"https://doi.org/10.11647/OBP.0149.02","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91176923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"3. Portrait of the Artist as a Young Juggler","authors":"J. Ziolkowski","doi":"10.11647/OBP.0149.03","DOIUrl":"https://doi.org/10.11647/OBP.0149.03","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88832192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"4. Membranes of Things Past","authors":"J. Ziolkowski","doi":"10.11647/OBP.0149.04","DOIUrl":"https://doi.org/10.11647/OBP.0149.04","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75076733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Juggler of Notre Dame and the Medievalizing of Modernity. Volume 6:\u0000 War and Peace, Sex and Violence","authors":"J. Ziolkowski","doi":"10.11647/OBP.0149","DOIUrl":"https://doi.org/10.11647/OBP.0149","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74355522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"5. Positively Medieval: The Once and Future Juggler","authors":"J. Ziolkowski","doi":"10.11647/obp.0149.05","DOIUrl":"https://doi.org/10.11647/obp.0149.05","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83404372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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