In 2022, one year before Federal Circuit drama made national news, Federal Circuit Judge Timothy Dyk released Timothy B. Dyk: The Education of a Federal Judge.
The memoir provides a fascinating account of his life, the federal judiciary, and his views about how the Federal Circuit should operate. In it, Dyk unabashedly explains the importance of appellate judges prioritizing collegiality, argues “that dissents do not always serve a useful purpose,” and writes about how “[t]ensions often arise because judges take too long in producing opinions” or “change positions during the course of a case.” Dyk, who clerked for Earl Warren at the Supreme Court, also posits that Warren succeeded by being an “expert at wielding the few levers of power granted to a chief justice.”
Even those who were reluctant to take a position regarding the circumstances of the recent Federal Circuit drama, expressed concern about the impact it has had on the Federal Circuit as an institution.
The events surrounding the drama left many unanswered questions and - mostly - silence from the court itself. However, unsurprisingly, the work of the court has continued, including exclusive appellate jurisdiction over cases arising under patent law.
On this Clause 8 episode, Eli sat down with Judge Dyk to discuss his memoir and provide a better understanding of how other Federal Circuit judges currently view the court.
This episode explores Dyk's perspectives on judges serving together at the Federal Circuit. His reflections and anecdotes offer a unique glimpse into the workings of the Federal Circuit, the decision-making process of a seasoned appellate judge, views on various debates surrounding the Federal Circuit, and priceless other insights, including on judges retiring.
This episode is a must-listen for anyone interested in gaining a better understanding of how the Federal Circuit is operating today - 42 years after it was created in 1982 and 24 years after Dyk was confirmed to serve on it in 2000.
Dyk was nominated to the Federal Circuit in 1998 by President Bill Clinton after a distinguished career as an appellate attorney at the law firms of Wilmer Cutler and Jones Day.
Selected Topics:
First introduction to patent law: office linoleum floors & yacht named Pat Pending
Role of chief judges setting court dynamics
Collegiality, dissents, and importance of individual personalities & relationships among judges
Judge Dyk's process for considering cases before oral arguments
Dyk’s defense of Rule 36 decisions and insights into other Federal Circuit practices
Panel dependency & skepticism of empirical scholarship related to judicial decisions
Former clerks arguing cases before judges they clerked for
Providing additional jurisdiction to Federal Circuit
Cameras in federal courtrooms & privacy in intra-court deliberations
Judicial retirement decisions and importance of humility
Advice for effective oral and written advocacy before the Federal Circuit, including for amicus briefs
Notable, Quotable:
Biggest challenge
"I think the biggest challenge for any Federal Circuit Judge in patent cases in particular is is dealing with the technology . . . getting the help that you need to understand the technology. It’s really hard. And we need help from the bar, we need help from our clerks, and we need to be willing to spend a lot of time to wade through it."
Role of collegiality
"Collegiality makes for better decision making, first of all. And second of all, it makes it a nicer place to be. You get along with your colleagues. The job is a lot better."
Qualities of best written briefs
"A brief that is candid about what's going on, that recognizes that there's another side to it, that's nothing shrill, that's statesman like, that's objective. Those are the qualities that we value most."
On Judge Pauline Newman
“I always enjoyed sitting with Judge Newman. I enjoyed having Judge Newman as a colleague and occasionally we did panels together. I remember we went to NYU and presented ourselves as being close colleagues even though we disagreed a lot of the time. Judge Newman was a terrific colleague, and I enjoyed being her friend.”
Judge Dyk Defends Today's Federal Circuit