Understanding the Unrepresented: How Therapeutic Jurisprudence Shapes America’s Patent Court

Understanding the Unrepresented: How Therapeutic Jurisprudence Shapes America’s Patent Court 

By Yawara Ng

The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) has three methods to dispose of cases: precedential opinions, non-precedential opinions, and affirmances without a written opinion. The last method is codified under Federal Circuit Rule 36 (“Rule 36”). Rule 36 allows the Federal Circuit to adjudicate over cases that are either completely without merit or split opinions that are not meant to be precedential, conserving judicial efficiency. As the national federal docket has risen dramatically over the years, judicially effective mechanisms appear more sound. However, judicial efficiency can come at the expense of individuals with no understanding of the law—particularly as the Federal Circuit has increased its use of Rule 36 affirmances.

Coinciding with the increase in the national docket is the surge of pro se litigants at the federal level. Due to a pro se litigants’ unfamiliarity with both the law and court procedures, many are disadvantaged from the onset; and the vast majority of pro se appeals are doomed to fail. Since 1995, the administrative office of U.S. Courts has commissioned the federal judiciary to document the number of pro se cases in the federal appellate system. However, the federal judiciary has declined to include America’s newest appellate court—the U.S. Court of Appeals for the Federal Circuit—in its statistical analysis; thus creating an imperfect picture of how pro se cases affect the federal docket. The Federal Circuit has exclusive jurisdiction over individual claims against the sovereign; yet, there is an absence of information regarding how the Court treats the unrepresented. Therefore, this blog will analyze one way the Federal Circuit adjudicates pro se cases by looking at its use of Rule 36 affirmances, and how it embodies “therapeutic jurisprudence.”

Pro se cases at the Federal Circuit are rarely heard on oral arguments and are usually decided on the briefs. Initially, I thought that the majority of meritless pro se cases would be disposed of through Rule 36 affirmances. However, this is not the case. In fact, pursuant to a WestLaw search, Rule 36 affirmances are rare in pro se cases, as indicated by the charts below. [1]


Beginning in 1993, the therapeutic jurisprudence movement focuses on the law’s impact on the emotional and psychological well-being of people. Advocates of therapeutic jurisprudence view lawyers and judges as therapeutic agents with the potential to heal the aggrieved rather than pedantic legal scholars removed from the human experience. However, therapeutic jurisprudence is not a “feel good” application of the law but a philosophical guideline that upholds the law while recognizing human realities.

In this vein, the Federal Circuit appears to apply the tenants of therapeutic jurisprudence in its rulings. Rather than disposing of meritless claims, the Federal Circuit addresses each claim individually unless a black and white procedural issue barred the court from having jurisdiction over the case. By engaging with the appellant, the Federal Circuit demonstrates to the unrepresented that while the ruling may not be in their favor, it is in accordance with the law and their argument was heard. By avoiding Rule 36 affirmances, the court displays a form of judicial altruism. Writing opinions for meritless decisions takes time and may contravene judicial efficiency, but doing so gives appellants a sense of finality. Avoiding opinions via Rule 36 could embitter individuals pining for judicial relief and disrupt their psychological well-being. While the outcome may not be what non-lawyers sought after, providing a reason is, in my view, more therapeutic than having them feel ignored.

[1] For the graphs, I conducted a Westlaw search with the following search string: adv: CO(fed) & DA(bef 1/01/20XX) & DA(aft 01/01/20YY) with the “attorney” field filtered with “pro se.” Afterwards, I filtered the results with “fed! Cir! R! 36” to compare.

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