Court’s docket shuns bankruptcy and IP cases
on Oct 2, 2015 at 1:55 pm
If past practice tells us anything, the Court’s orders yesterday have disclosed to us something like sixty to sixty-five percent of this Term’s docket. Presumably many observers are pleased to see so many cases in the areas that interest them most. But what is most notable to me is the prominent paucity of issues in the areas of bankruptcy and intellectual property, staples of the Court’s recent docket: among the forty cases set for argument in October Term 2015, there is not yet a single case in either of those areas.
To give a little context, the Court heard five bankruptcy cases last year and has averaged three each year over the last six Terms. The last Term the Court heard no bankruptcy cases was 2008; it has left that subject unaddressed only three times in the last thirty years. The drop-off in IP cases is even starker. Last year, the Court heard five IP cases; it averaged almost eight per year the preceding three Terms, roughly ten percent of all the Court’s cases over that period.
Do I have any crisp explanation for this? In part. The Court’s bankruptcy docket over the last several decades has been cyclical, rising with major statutory enactments and economic downturns and then subsiding a few years later. The last six years have been the upswing – related to the financial shock of 2009. The bankruptcy docket was much thinner in the preceding years: an average of one-and-a-half cases per Term in the preceding nine years. So it is reasonable to suspect that the crop of urgent bankruptcy issues finally is declining. The Court well might be hearing fewer bankruptcy cases in the coming years than it has the last several years.
For the IP docket, though, I am at a loss. I see nothing to suggest that IP is becoming less important to the economy, or less controversial. Congress’s recent revision of the patent laws created a host of issues, some of which certainly call out for the Court’s attention. (I’m thinking here, to offer just one example, of In re Cuozzo Speed, with which the Federal Circuit struggled so hard this summer.) The challenge of updating copyright doctrine for modern information technology continues unabated. And the Court’s actions the last few years suggest a level of concern for the Lanham Act not previously seen in my lifetime. So here I have to expect IP cases to join the argument list in the coming months.
Three business areas in which the Court’s interest plainly has not abated: ERISA, arbitration, and class actions. The Court will hear multiple ERISA cases this Term for the third year in a row. And after taking a year off from disputes about consumer arbitration and class actions, the Court has three class action cases and two consumer arbitration cases (both from California) on its docket this fall. Collectively those three subjects fill a quarter of the Court’s entire civil docket for the Term to date.