Specialized Standards of Review

38 Pages Posted: 16 Sep 2015 Last revised: 28 Mar 2017

See all articles by Jonas Anderson

Jonas Anderson

American University - Washington College of Law


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 Essay supports those decisions.

Furthermore, this Essay marshals additional support for the Court’s decisions in three ways. First, this Essay 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 Essay concludes by arguing for a reduced role for stare decisis in standard of review cases.

Keywords: Federal Circuit, patent law, Standard of Review, Courts, Specialized Courts

JEL Classification: J29, J30

Suggested Citation

Anderson, Jonas, Specialized Standards of Review. 18 Stanford Technology Law Review 151 (2015), Available at SSRN: https://ssrn.com/abstract=2661017

Jonas Anderson (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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