Legal Uniformity in American Courts

• DOI: http://doi.org/10.1111/jels.12224
• Date: 01 September 2019
• Published date: 01 September 2019

Journal of Empirical Legal Studies

Volume 16, Issue 3, 448–478, September 2019

Legal Uniformity in American Courts

Deborah Beim and Kelly Rader*

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 cause legal nonuniformity, are

an impediment to lawyering and judging, and have practical consequences for U.S. law.

Despite intercircuit splits’ importance, there is almost no quantitative research about them.

We created a unique original dataset that includesintercircuitsplitsthatarosebetween2005

and 2013. For each intercircuit split, we identified every circuit and every case involved. These

data reveal that one-third of intercircuit splits are resolved by the Supreme Court. Two-thirds

are not. We show that those that will be resolved are resolved within three years after they arise

and that splits are more likely to be resolved when they exhibit contemporaneous and grow-

ing disagreement. However, many such splits are never resolved by the Supreme Court. Those

that are not resolved by the Supreme Court continue to yield litigation and do not dissipate

on their own. The likelihood of resolution does not rise as time passes.

I. Introduction

Law is made in the U.S. Courts of Appeals. The structure of the federal courts is such that

each of the circuit courts of the U.S. Courts of Appeals is an independent policymaker.

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 dif-

ferent rules, as they often do, then different rules decide who gets what at whose expense. Such

an occurrence is known as an intercircuit split.

*Address correspondence to Kelly Rader, Associate Professor, Department of Political Science, Yale University, PO

Box 208301, New Haven, CT 06520-8301; email: kelly.rader@yale.edu. Beim is Assistant Professor, Department of

Political Science, Yale University.

The authors thank Bethany Albertson, Tom Clark, Paul Collins, Zach Elkins, Josh Fischman, Mike Giles, Arthur

Hellman, Scott Hendrickson, Rachael Hinkle, John Kastellec, Michael Nelson, H. W. Perry, Jim Rogers, Georg

Vanberg, Steve Wasby, Chris Zorn, and many seminar audiences 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 Cen-

ter 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.

448

Per Federalist 80, legal uniformity has long been recognized as paramount for the

administration of blind justice, and the Supreme Court’s position at the top of the judi-

cial hierarchy is meant to ensure nationwide uniformity in federal law. It is well-

established that the Supreme Court is a national policymaker (Dahl 1957). However,

because the Court hears so few cases, the appellate courts usually have the final say.

Unless the Supreme Court intervenes, intercircuit splits are U.S. law.

Judges, justices, congressmen, lawyers, and other actors overwhelmingly believe

intercircuit splits are harmful. 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 refused to resolve an intercircuit split (Tobias 2003). During the

1970s and again in the 1990s, Congress established committees to study the prevalence

and tolerability of intercircuit splits, and yet, intercircuit splits are not well understood.

We do not know how many intercircuit splits there are, how likely splits are to be

resolved,

1

or how long they persist before resolution.

In this article, we quantify legal uniformity in the circuit courts. Specifically, we use

an original dataset of intercircuit splits to show how often and how quickly intercircuit

splits are resolved and what factors predict whether and when the Supreme Court will

choose to resolve a split. Our data are unique in two ways. First, we collect a sample of

intercircuit splits, only some of which have been resolved by the Supreme Court. Second,

for each split, we include all appellate cases involved in that split and, therefore, all

potential vehicles for resolution.

We show that most intercircuit splits are never resolved by the Supreme Court.

Only one-third are resolved. Those splits that are resolved are resolved soon after they

begin—usually within the first three years of the split’s existence.

We argue that the Supreme Court resolves harmful and important splits. Drawing

on practitioners’ guides, normative principles, and political science literature on certio-

rari, we detail criteria for which splits are most likely to be resolved, and largely confirm

these expectations. Splits that exhibit contemporaneous and growing disagreement are

more likely to be resolved, as are those splits in which there are dissents, and in which

the Solicitor General petitions for certiorari.

But those splits that are not resolved are not necessarily benign. There are numer-

ous contemporaneous, growing splits that are not resolved, and likely never will

be. “Well-percolated” splits—those that arise only after many circuits have weighed in on

an issue, as well as those that go on for many years—are no more likely to be resolved by

the Supreme Court. The likelihood of resolution does not increase as more cases arise in

a split. Unresolved intercircuit splits continue to generate decisions. They are not gener-

ally obviated by the decisions of other actors, like Congress or agencies. As a result, the

state of U.S. law is less uniform than one might assume.

1

Though see Hellman (1995), which used a sample of cert petitions to estimate the number of unresolved inter-

circuit splits in the late 1980s.

Legal Uniformity in American Courts 449