Judicial Specialization, Patent Cases, and Juries

Judicial specialization has long been a topic of debate among patent lawyers and scholars.  In recent years, critics (including Seventh Circuit Judges Diane Wood and Richard Posner) have questioned the wisdom of granting the U.S. Court of Appeals for the Federal Circuit exclusive jurisdiction over patent cases.  Yet, judicial specialization in patent cases is not limited to the Federal Circuit.  Over the past decade or so, certain federal district courts--particularly, the Eastern District of Texas and the District of Delaware--have become patent litigation "hot spots," and the judges in those districts have developed substantial patent expertise.  Moreover, Congress established the Patent Pilot Program in 2011 "to encourage enhancement of expertise in patent cases among district judges" by funneling patent cases in certain districts to designated judges.

Proponents of judicial specialization argue that it promotes efficiency, uniformity, and predictability for litigants, while opponents claim that specialized courts are subject to bias, capture, and tunnel vision.  Recent scholarship also addresses the question whether specialized courts are more likely to compete for lawsuits, or participate in "forum selling," as discussed here and here.

I am currently working on a paper, Influencing Juries in Litigation Hot Spots, that explores a different problem with specialized trial courts: the potential to improperly influence the jury pool.  The situation with patent cases in the Eastern District of Texas, recently highlighted on John Oliver's show, provides a prime example.  In the Eastern District of Texas, repeat litigants like Samsung have attempted to generate goodwill with the citizens of Marshall and Tyler (i.e., potential jurors) by sponsoring an ice skating rink outside the courthouse, granting college scholarships to Marshall and Tyler students, and donating television monitors to the local high school.  While the small towns of Marshall and Tyler have no doubt benefitted from Samsung's public relations campaign, the cost to our justice system--where juries are supposed to be impartial--is arguably too high.