In his 1909 treatise on appellate jurisdiction, the future Justice Benjamin Cardozo explained the role of appellate courts - not simply "declaring justice between man and man, but . .. settling the law." In Justice Cardozo's view, the appellate courts exist "not for the individual litigant, but for the indefinite body of litigants, whose causes are potentially involved in the specific cause at issue." Justice Cardozo's vision more than a century ago still resonates, and precedential opinions form a mainstay of appellate court activity nationwide. However, one court of appeals is quite different from the rest. The Court of Appeals for the Federal Circuit issues a substantial number of Rule 36 affirmances without any opinion at all. In fact, most of the court's Patent Office merits decisions are released as so-called judicial orders as permitted by the court's local rule for "judgment of affirmance without opinion." Although frustrating for parties and court watchers, the approach likely provides substantial short-term efficiency gains for a court that has seen a sharp rise in the number of appeals following a set of dramatic statutory revisions and Supreme Court holdings.
The Federal Circuit has repeatedly made clear that its Rule 36 judgments are not opinions, that they offer no reasons for judgment, and that they should not be read as accepting any of the reasoning or findings of the lower court. Although many have complained about the no-opinion judgments, no one has yet suggested that the practice violates federal statutory law. In this Article, I make the novel argument that the appellate court's steady practice of no-opinion judgments runs contrary to the law. Both the Patent Act and the Lanham Act require the Federal Circuit to provide an opinion when issuing a judgment on an appeal from the Patent and Trademark Office ("PTO"). In particular, both statutes indicate that, upon determination of the case, the Federal Circuit "shall issue . . . its mandate and opinion." Quite simply, Rule 36 judgments are not opinions and do not satisfy the opinion requirement.
Dennis D. Crouch,
Wrongly Affirmed without Opinion, 52 Wake Forest Law Review 561
Available at: https://scholarship.law.missouri.edu/facpubs/715