This Note challenges the assumption that the Solicitor General’s (SG’s) litigating authority is ineffective in controlling agency policymaking. When other political control mechanisms are weak, the SG’s litigating authority may provide the most effective means of ensuring that an agency’s policies agree with the Administration’s preferences. Patent law exemplifies this dynamic. The Patent and Trademark Office’s (PTO’s) specialization limits the effectiveness of policy and budgetary review and the appointment and removal powers. However, the SG’s litigating authority compensates for this weakness in direct oversight by facilitating indirect review of the PTO’s policies. Applying the fire-alarm model of political control, I argue that the SG acts as the Administration’s fire dispatcher. The SG raises the alarm when the PTO diverges from the Administration’s preferences, allowing the Administration and other government interests to intervene. In doing so, the SG decides which alarms are genuine, which fires can be extinguished, and when and where fire fighters should be allocated. Nevertheless, the SG’s increasing influence threatens to swallow the PTO’s expertise. This Note concludes by evaluating practices for improving the SG’s functioning in its role as fire dispatcher. Specifically, it recommends that the SG should, in some cases, allow the PTO to self-represent, but that the Supreme Court should not follow the Federal Circuit’s innovative practice of issuing calls for agency views.
Yale Law School, J.D. expected 2016, and Student Fellow at the Yale Information Society Project.