Intercircuit Splits on the Courts of Appeals

Intercircuit splits occur when two or more circuits on the U.S. Courts of Appeals issue different legal rules about the same legal question. When this happens, federal law is applied differently in different parts of the country. Intercircuit splits are an indicator of legal non-uniformity, an impediment to lawyering and judging, and have real, practical consequences for American law. They are also one of the best known predictors of certiorari. Despite intercircuit splits’ importance, there is almost no quantitative research about them. We created an original dataset—the first of its kind—that includes intercircuit splits that arose between 2005 and 2013. For each intercircuit split, we identified every circuit and every case involved. These data reveal that one-third of intercircuit splits are eventually resolved. Two-thirds are not. We show that those that will be resolved are resolved within three years after they arise. Splits are more likely to be resolved when they exhibit contemporaneous and growing disagreement. ∗ We thank Josh Fischman, Jim Rogers, Steve Wasby, Paul Collins, Chris Zorn, John Kastellec, Rachael Hinkle, Scott Hendrickson, H.W. Perry, Bethany Albertson, Zach Elkins, Georg Vanberg, the Law, Economics, and Organization workshop at Yale Law School, and seminar audiences at the Midwest Political Science Association and the Conference on Influences on Judicial Behavior for helpful comments. Thanks to Phoebe Clarke, Jesselyn Friley, Shelby Baird, Joy Chen, Ian Crichton, Pia Deshpande, Sarah DiMagno, Julia Greenberg, Michelle Kim, Alisha Jarwala, Adam Kunz, Tony Nguyen, and Tory Stringfellow for excellent research assistance; to the Center for the Study of American Politics and the Institution for Social and Policy Studies at Yale University and the University of Texas Harrington Fellowship for research support; to John B. Nann at the Lillian Goldman Law Library at Yale Law School; to John Summers for sharing data; and to Rebecca Hilgar, Patrick Coughlin, and Christine Gaddis from the Seton Hall Circuit Review for their help. Law is made in the U.S. Courts of Appeals. It is well-established that the Supreme Court is a national policy-maker (Dahl 1957). But it is less often acknowledged that each of the circuit courts of the U.S. Courts of Appeals is a policy-maker. There is a norm of stare decisis within each circuit, but there is no such expectation across circuits. If similar cases arise in multiple places and different circuits announce different rules, as they often do, then different policies decides who gets what at whose expense. This is known as an intercircuit split. As a result of an intercircuit split, federal statutes can be and are interpreted differently in different parts of the country. Constitutional rights and liberties are allocated differently in different jurisdictions. Federal agencies behave differently in different parts of the country (Canes-Wrone 2003). Judges, Justices, congressmen, lawyers, and other actors widely believe the intercircuit splits are bad. During Justice Alito’s confirmation hearings before the Senate Judiciary Committee, Senator Mike DeWine complained that intercircuit splits harm businesses, make judging difficult for district courts, and undermine uniformity in federal law. Justice White famously wrote a dissent from denial of certiorari every time the Supreme Court failed to resolve a conflict (Tobias 2003). During the 1970s and again in the 1990s, Congress established committees to study the prevalence and tolerability of intercircuit splits. Since splits bother so many political actors, it is not surprising that the existence of a circuit split is one of the best predictors of Supreme Court review. But it would be an inferential mistake to claim that intercircuit splits are likely to be resolved, or more likely to be resolved than not. No existing research estimates how likely splits are to be resolved. And although there is plentiful intuition about which splits are most likely to be resolved—those that are active, growing, important, and well-percolated— virtually no analysis tests these intuitions. In this paper, we use an original and unique dataset of intercircuit splits to show how