Avoiding Recusal?

Whenever there is a rash of Rule 36 decisions, it seems as though an unanticipated en banc decision is soon to follow.  Lately, the Federal Circuit has issued what seems like a large number of Rule 36 decisions — and, sure enough, today it issued an en banc decision in Williamson v. Citrix.

The cynic in me wonders if the reason that the court takes some cases en banc without oral argument is to avoid the opportunity for further amicus briefing that could cause recusal of some of its members.  Both judges O’Malley and Moore are at risk of being gamed out of en banc decisions when their respective husbands’ firms are enlisted to submit amicus briefs.  Once judicial candidate Stoll is confirmed by the Senate, a third judge will be at risk of recusal during en banc cases due to at least one close relative practicing in the patent field.

Perhaps the Federal Circuit should consider an internal rule to address this issue.

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