My office has had cases where we have not known how to advise our clients because the precedent from the Ninth Circuit went both ways on the same issue. Senior Judge Eugene Wright, who admittedly favors a split, has commented extensively on this problem. Judge Wright has recalled going to his office and finding 61 opinions issued in just one week. In smaller circuits, such as the Third Circuit, the opinions are circulated to all judges on the court before filing, allowing the judges to suggest changes. This leads to more consistency in the law and fewer appeals because there is less uncertainty about the law of the circuit.
Smaller circuits appear to have more safety valves.
For example, in those circuits, like the Third Circuit, where opinions are circulated to all judges prior to filing, errors in judicial analysis can be caught. The inconsistencies with which Idaho must deal are not only intra-circuit inconsistencies, but inconsistencies between the Ninth Circuit and the Supreme Court. These inconsistencies cost the state money. When the Ninth Circuit gives an overly broad reading of prisoner rights regarding law libraries, it is the state that has to spend hundreds of thousands of dollars to meet a judicial mandate that it finds out, years later from the Supreme Court, was not constitutionally required. Another problem resulting from the size of the circuit is its inability to hear a case en banc .