Papers by James Hopenfeld
To succeed at the CAFC, the advocate must succeed in three stages of appeal. The first stage of a... more To succeed at the CAFC, the advocate must succeed in three stages of appeal. The first stage of appeal is actually the stage of proceedings in the trial court. The trial court proceedings are the first stage of appeal because in the absence of correct advocacy in the trial court, there is no opportunity for appeal. The action in the trial court need not be the success of winning at trial. It must, however, at least be the success of preserving issues for appeal – preserving critical error that cannot be remedied at the trial level. In the second stage of appeal, the appeal must be successfully taken and briefed: clear, credible, powerful persuasion is essential. And in the third stage, the appeal must be sustained at oral argument in the face of the appellate judges’ vigorous views and incisive questions. A combination of three successes that radiates its own strong energy offers the best prospect of reaching the advocate’s goal at the Federal Circuit
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Michigan Law Review, May 1, 1991
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American Journal of International Law, 1993
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Michigan Law Review, 1992
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John Marshall Review of Intellectual Property Law, 2001
This article contends that the Federal Circuit\u27s decision in Festo Corp. v. Shoketsu Kinzoku K... more This article contends that the Federal Circuit\u27s decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., now on review before the United States Supreme Court, is more than just a controversial patent case. Festo raises, in addition, important issues with respect to stare decisis and the power and authority of the Federal Circuit and appeals courts in general. The jurisprudential issues raised by Festo are revealed by an analysis of the different methods used by the Federal Circuit majority on one hand, and Judge Michel\u27s dissent on the other, in applying Supreme Court precedent to reach a legal conclusion. The majority\u27s approach would give appeals courts relatively more flexibility to decide issues independent of Supreme Court precedent; Judge Michel\u27s dissent relatively less. Having identified and characterized the different approaches used by the majority and Judge Michel, the article goes on to discuss how one might determine which approach best comports with existing law. The article concludes that: 1) while Judge Michel\u27s approach probably better comports with Supreme Court law, one cannot rule out that an argument to the contrary can be made without more exhaustive study of Supreme Court jurisprudence; 2) because the Federal Circuit does not have any more or less power to make substantive law than other courts of appeals, whichever approach is appropriate for the Federal Circuit also must be appropriate for other courts of appeals; and 3) the Supreme Court has good reasons to address at least some of the jurisprudential issues raised by Festo regardless of how it ultimately resolves the patent law issues
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Papers by James Hopenfeld