• Professor David Schwartz

    David L. Schwartz

    Associate Professor of Law and Co-Director of the Center for Empirical Studies of Intellectual Property

    – Go to his faculty biography

    – Go to his publications:


    Schwartz — The U.S. Supreme Court’s Use of Legal Scholarship

    by  • May 22, 2013 • Faculty Commentary, Scholarship • 0 Comments

    In his latest guest post at the legal blog Concurring Opinions (“The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues“), Professor David Schwartz presents his own extensive empirical research on the U.S. Supreme Court’s use of legal scholarship in order to “report some new information and ask readers for potential explanations of the data.” Read an excerpt from the post below:

    While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). . . .

    As part of our Supreme Court studies, we identified which Supreme Court decisions cited to legal scholarship in every case from 1946 until the end of the 2010 Supreme Court term. This includes almost 8,000 decisions. We supplemented our information about legal scholarship with data in the well-known Spaeth database, also known as the Supreme Court Database. Despite criticism of the Supreme Court Database by some (including my colleague Carolyn Shapiro here), the Supreme Court Database has been called the “gold standard” for political science research.

    Click here to continue reading, and don’t miss these other posts in Prof. Schwartz’s guest series at Concurring Opinions: “Should Empirical Legal Scholars Have Special Responsibilities?“, “Software Patent Eligibility

    *UPDATE: The Empirical Legal Studies blog also highlighted Professor Schwartz’s findings on the Supreme Court’s use of legal scholarship. Read the article here.

    Schwartz — Software Patent Eligibility

    by  • May 14, 2013 • Faculty Commentary • 0 Comments

    Professor David Schwartz continues his guest residency at the legal blog Concurring Opinions with a new post titled “Software Patent Eligibility.” Read an excerpt below:

    This post reflects my initial impressions of an important Federal Circuit development in patent law, which is my primary area of scholarly focus. On Friday, the Federal Circuit, sitting en banc, ruled on a controversial and divisive patent law issue, whether software inventions are patent eligible subject matter. Unfortunately, I find the decision in this case, CLS Bank v. Alice Corp., quite unsatisfying.

    The court, sitting with 10 judges, issued 7 separate opinions spanning 135 pages. The court only agreed upon a very brief – 55 words – per curiam opinion affirming the district court ruling that the asserted patents were invalid. The per curiam opinion explained that the “method” and “computer readable media” claims were deemed not patent eligible by the Federal Circuit, while the court was equally divided on the status of the “system” claims. (Basically, there are several different ways that a software invention can be claimed in a patent, including as a process/method of performing steps; as software embedded upon a computer readable medium (i.e., a DVD); and as a system (i.e., software running on a machine/computer).) None of the remaining substantive opinions garnered more than 5 votes – thus, none are binding precedent. Although a majority of the Federal Circuit judges found the method and media claims invalid, a majority could not agree upon the reasoning. Below I will briefly provide a few preliminary observations about the opinions.

    Click here to continue reading, and don’t miss these other posts in Prof. Schwartz’s series: “Should Empirical Legal Scholars Have Special Responsibilities?

    Schwartz — Should Empirical Legal Scholars Have Special Responsibilities?

    by  • May 8, 2013 • Faculty Commentary • 0 Comments

    Professor David Schwartz has written his first post as guest blogger at the group legal blog Concurring Opinions. In the post, Schwartz examines “whether empirical legal scholars have or should have special ethical responsibilities.” Read an excerpt from the post below:

    Why special responsibilities? Two basic reasons. First, nearly all law reviews lack formal peer review. The lack of peer review potentially permits dubious data to be reported without differentiation alongside quality data. Second, empirical legal scholarship has the potential to be extremely influential on policy debates because it provides “data” to substantiate or refute claims. Unfortunately, many consumers of empirical legal scholarship — including other legal scholars, practitioners, judges, the media, and policy makers — are not sophisticated in empirical methods. Even more importantly, subsequent citations of empirical findings by legal scholars rarely take care to explain the study’s qualifications and limitations. Instead, subsequent citations often amplify the “findings” of the empirical study by over-generalizing the results.

    Read the rest of Prof. Schwartz’s post at Concurring Opinions. Check back here for more updates on Prof. Schwartz’s activity.