![Thurgood Marshall United States Court House](https://upload.wikimedia.org/wikipedia/commons/8/8c/Thurgood_Marshall_United_States_Court_House.jpg)
In
United States federal courts
The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the Constitution of the United States, United States Constitution and Law of the United States, laws of the fed ...
, a circuit split occurs when two or more different
circuit courts of appeals provide conflicting rulings on the same legal issue. The existence of a circuit split is one of the factors that the
Supreme Court of the United States considers when deciding whether to grant review of a case.
[https://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf ] Some scholars suggest that the Supreme Court is more likely to grant review of a case to resolve a circuit split than for any other reason.
Despite the desire of the Supreme Court to resolve conflicts between circuit courts, legal scholars disagree about whether circuit splits are ultimately detrimental or beneficial. Some argue that circuit splits are harmful because they create confusion and encourage
forum shopping
Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so ...
, while other scholars argue that variation among circuits allows local courts to experiment with new laws that reflect the values of the local residents. Scholars have also observed that regional variations in different areas of the United States have provided certain circuits with a particular specialization or expertise in some subjects of law.
[See, e.g., Eric Hansford]
''Measuring the Effects of Specialization with Circuit Split Resolutions''
63 1145, 1150 (2011).
Origins
Article III of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by United ...
specifies that "
e judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In 1789,
Congress created the first system of intermediate
appellate courts
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
, known as
federal circuit courts, which had appellate jurisdiction over certain matters decided by
district courts. These federal circuit courts consisted of two justices from the
Supreme Court of the United States and one district court judge. In 1891, Congress created the existing system of
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals f ...
, which hear appeals from United States district courts within limited geographic areas. For example, the
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts:
* Eastern District of Louisiana
* M ...
hears appeals originating from United States district courts in
Louisiana
Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
,
Mississippi
Mississippi () is a state in the Southeastern region of the United States, bordered to the north by Tennessee; to the east by Alabama; to the south by the Gulf of Mexico; to the southwest by Louisiana; and to the northwest by Arkansas. Miss ...
, and
Texas
Texas (, ; Spanish language, Spanish: ''Texas'', ''Tejas'') is a state in the South Central United States, South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2 ...
. Decisions in circuit courts are usually made by rotating three-judge panels chosen from judges sitting within that circuit, and circuit courts also occasionally decide cases ''
en banc
In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller p ...
''.
Circuit courts do not collaborate or work with other circuits to resolve legal issues, and different circuit courts may reach conflicting conclusions about the same legal issue. Furthermore, cases decided in one circuit are not binding authority on other circuits. If the Supreme Court of the United States has not ruled on a legal issue, federal courts of appeals resolve these issues "as they see fit, subject only to a norm of intracircuit
stare decisis." When a circuit split occurs, there is rarely an even numeric division among courts of appeals with regard to how the dispute should be resolved.
[Tom Cummins & Adam Aft]
''Appellate Review''
2 59 (2012). In fact, one study found that courts of appeals split evenly in less than one third of all circuit splits.
Occasionally, separate courts of appeals will reach three or more different conclusions with regard to the same legal issue.
Significance
Some scholars criticize the existence of circuit splits, while other scholars suggest that circuit splits may, in fact, be beneficial.
[See, e.g., Amanda Frost]
''Overvaluing Uniformity''
94 1567, 1571 (2008). Others simply argue that circuit splits may not be ideal, but problems associated with inter-circuit conflicts are overstated. For example, Fourth Circuit Court of Appeals Judge
Harvie Wilkinson once stated the "world will not end because a few circuit splits are left unresolved."
Criticisms of circuit splits
Legal analysts have identified problems associated with circuit splits. Jesse M. Boodoo, for example, suggests that circuit splits create a state of confusion and uncertainty for citizens. Because different laws are applied and enforced in different jurisdictions, Daniel J. Meador has argued that Circuit splits may create a judicial "
Tower of Babel
The Tower of Babel ( he, , ''Mīgdal Bāḇel'') narrative in Genesis 11:1–9 is an origin myth meant to explain why the world's peoples speak different languages.
According to the story, a united human race speaking a single language and mi ...
." Additionally,
Wayne A. Logan has argued that if courts speak with a unified voice, this will "secure popular respect for judicial authority." Likewise, Matthew Lund cautions that circuit splits will lead to
forum shopping
Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so ...
, where litigants flock to jurisdictions with more favorable laws. Judge
Kimberly A. Moore also suggests that circuit splits and forum shopping lead to
economic inefficiency
In microeconomics, economic efficiency, depending on the context, is usually one of the following two related concepts:
* Allocative or Pareto efficiency: any changes made to assist one person would harm another.
* Productive efficiency: no addit ...
because outcomes are unpredictable and litigants are less likely to
settle
Settle or SETTLE may refer to:
Places
* Settle, Kentucky, United States
* Settle, North Yorkshire, a town in England
** Settle Rural District, a historical administrative district
Music
* Settle (band), an indie rock band from Pennsylvania
* ''S ...
.
Scholars have also argued that inconsistent application of laws in different circuits is inherently unfair.
Trevor W. Morrison, for example, claims that circuit splits create potential
due process conflicts if criminal defendants are unaware that their behavior constitutes criminal activity in that circuit. An article in the ''New England Journal on Criminal & Civil Confinement'' also suggested that there is the potential for the unconstitutional ''
ex post facto'' application of law after circuit splits are resolved. Additionally, Jesse M. Boodoo argues that
federal agencies tasked with enforcing laws throughout the United States may face challenges implementing regulatory measures when federal legislation is interpreted differently in separate circuits.
Arguments in favor of circuit splits
Legal scholars have also identified benefits associated with circuit splits. For example,
Justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
Louis Brandeis praised the fact that splits of opinion among courts allow jurisdictions to experiment with new developments in law without risking harm to other jurisdictions. Judge
Diane P. Wood has suggested that circuit splits and "disagreements with colleagues force judges to sharpen their writing, push them to defend their positions, and from time to time persuade them that someone else's perspective is preferable". Amanda Frost has argued that negative attitudes toward circuit splits may hinder progress and creative problem solving because "
urts of appeals are generally hesitant to depart from precedent set in other jurisdictions, despite being under no obligation to adhere to decisions by sister circuits." Consequently, Frost suggests that uniformity among circuits may be "overvalued."
Likewise,
Wayne A. Logan suggests that circuit splits may also be beneficial by virtue of the fact that citizens in different parts of the country have different preferences for how to structure their laws. Additionally, Judge
J. Clifford Wallace
John Clifford Wallace (born December 11, 1928) is a United States federal judge, Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit and previously was a United States district judge of the United States ...
has argued that there is nothing inherently wrong with different laws existing in different circuits, and "if conflicts were by their very nature unacceptable, the traditional rule denying precedential status to out-of-circuit decisions probably would not have enjoyed its long history."
Resolving circuit splits at the Supreme Court of the United States
One of the primary functions of the
Supreme Court of the United States is to ensure that laws are interpreted uniformly among intermediate courts of appeal. Unless
the legislature takes action, the United States Supreme Court is the only source of resolution for conflicts among intermediate courts of appeal. Consequently, the existence of a circuit split may be a key factor when the Supreme Court
decides whether to accept a case. Although the Court always maintains discretion over whether it should grant review of a case, the Rules of the Supreme Court of the United States specifically state that the existence of a circuit split is one of the factors the Court considers when deciding whether to grant review.
Philip Allen Lacovara and H.W. Perry both claim that the existence of a circuit split is "the single most important generalizable factor" that determines whether the Supreme Court will grant review of a case.
Indeed, justices sometimes cite the lack of a circuit split as a reason to deny review in a case.
Although federal judges are prohibited from commenting publicly "on the merits of a matter pending or impending in any court", Judge
Alfred T. Goodwin
Alfred Theodore Goodwin (June 29, 1923 – December 27, 2022) was an American jurist who was a United States federal judge, United States circuit judge of the United States Court of Appeals for the Ninth Circuit and also a district judge of th ...
has stated that circuit court judges will occasionally create circuit splits to "hold the Supreme Court's toes to the fire" and force the Supreme Court to overrule precedent in other circuits. Goodwin also wrote that "some of our number actually found it intellectually stimulating to challenge the Supreme Court from time to time" but that those judges "usually were rewarded by a Nine Zip reversal". Likewise,
Judge Charles R. Wilson noted that when he drafted dissenting opinions, he would consider whether the parties planned to appeal the case to the Supreme Court of the United States, and "
I believe that the parties will
ile an appeal I write the dissent with the Supreme Court in mind". C. Steven Bradford has also argued that circuit courts will "disregard a Supreme Court precedent if convinced that the Supreme Court would not follow it".
A study of Supreme Court cases during the first six terms of the
Roberts Court
The Roberts Court is the time since 2005 during which the Supreme Court of the United States has been led by John Roberts as Chief Justice. It is generally considered to be more conservative than the preceding Rehnquist Court and the most cons ...
(2005–2010) resolving circuit splits found that the Supreme Court upheld the view held by the majority of circuits in 51.5 percent of all cases. This same study found the greatest agreement when deciding legal issues between the Fifth and Tenth circuits (80.6 percent), the First and Second circuits (73.5 percent), and the Fifth and Fourth circuits (73.0 percent).
[John S. Summers & Michael J. Newman]
''Towards a Better Measure and Understanding of U.S. Supreme Court Review of Courts of Appeals Decisions''
80 U.S.L.W. 393 (2011). The circuit courts that agreed the least frequently were the Ninth and Fourth circuits (39.0 percent) and the Ninth and Seventh circuits (39.2 percent).
Additionally, a study analyzing cases from the 2010 term found that nearly two thirds of Supreme Court decisions resolving circuit splits were decided unanimously or by an 8-1 vote.
Specialization among circuit courts of appeals
The eleven numbered circuit courts of appeals and the District of Columbia Circuit have appellate jurisdiction over cases in almost every area of the law arising within the boundaries of that circuit. However, the subjects that appear more frequently in each circuit vary according to the kinds of cases that arise more often within the circuit's boundaries.
For example, the District of Columbia Circuit, which contains the
federal capital
A federal capital is a political entity, often a municipality or capital (political), capital city, that serves as the Seat of government, seat of the federal government. A federal capital is typically a city that physically encompasses the offices ...
, hears a large number of
administrative law
Administrative law is the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
cases. Likewise, the Second Circuit, which contains
New York, hears nearly one third of all federal
securities law
Securities regulation in the United States is the field of U.S. law that covers transactions and other dealings with securities. The term is usually understood to include both federal and state-level regulation by governmental regulatory agencies ...
appeals, while the Fifth Circuit, which covers more than half of the
Mexico–United States border
The Mexico–United States border ( es, frontera Estados Unidos–México) is an international border separating Mexico and the United States, extending from the Pacific Ocean in the west to the Gulf of Mexico in the east. The border traver ...
, hears approximately half of all federal immigration appeals. Eric Hansford argues that this has led to "specialized" courts with particular expertise with the subjects that appear before the court more frequently.
Studies also suggest that the Supreme Court is more likely to affirm decisions of circuit courts when the circuit court has ruled on a case for which they possess special expertise.
In some specialized areas of the law, cases are assigned to a court of appeals that possesses expertise in that area of the law. For example, Congress created the
Court of Appeals for the Federal Circuit
The United States Court of Appeals for the Federal Circuit (in case citations, Fed. Cir. or C.A.F.C.) is a United States court of appeals that has special appellate jurisdiction over certain types of specialized cases in the U.S. federal court ...
as an exclusive federal court of appeals for
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
cases. Congress noted that consolidating cases in a single court of appeals would "strengthen the United States patent system in such a way as to foster technological growth and industrial innovation." Because of its role as a specialist court, circuit splits rarely exist between the Federal Circuit and other circuit courts of appeal. In his opinion in ''
Markman v. Westview Instruments, Inc.
''Markman v. Westview Instruments, Inc.'', 517 U.S. 370 (1996), is a United States Supreme Court case on whether the interpretation of patent claims is a matter of law or a question of fact. An issue designated as a matter of law is resolved by t ...
'', Justice
David Souter
David Hackett Souter ( ; born September 17, 1939) is an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1990 until his retirement in 2009. Appointed by President George H. W. Bush to fill the seat ...
observed that avoiding conflicting rulings among circuit courts in patent law cases benefits the economy by providing legal certainty to businesses.
Examples of existing circuit splits
The following are examples of existing splits of authority between different circuit courts of appeals:
* The Sixth Circuit and the Tenth Circuit disagree with regard to whether police may seize an individual, without a warrant, based solely on the officers' reasonable suspicion that the individual being seized committed a misdemeanor.
* The Third Circuit, Fifth Circuit, and Ninth Circuit disagree with regard to whether the "special needs" exception permits warrantless strip searches of juveniles.
* The Fifth Circuit and the Eleventh Circuit disagree with regard to whether prisoners have a reasonable expectation of privacy for correspondence with their attorney.
* The First Circuit and the Fifth Circuit disagree with regard to the appellate standard of review for a trial court's determination of the scope of defendant's consent to search.
[Compare ''United States v. Melendez'', 301 F.3d 27, 32 (1st Cir. 2002) with ''United States v. Stewart'', 93 F.3d 189, 192 (5th Cir. 1996).]
See also
*
List of United States courts of appeals cases
Every year, each of the thirteen United States courts of appeals decides hundreds of cases. Of those, a few are so important that they later become models for decisions of other circuits, and of the United States Supreme Court, while others are no ...
*
State supreme court
In the United States, a state supreme court (known by other names in some states) is the highest court in the state judiciary of a U.S. state. On matters of state law, the judgment of a state supreme court is considered final and binding in b ...
*
Judicial appointment history for United States federal courts
The appointment of federal judges for United States federal courts is done via nomination by the President of the United States and confirmation by the United States Senate. The tables below provide the composition of all Article III courts which i ...
References
{{reflist, 30em
Split
Split(s) or The Split may refer to:
Places
* Split, Croatia, the largest coastal city in Croatia
* Split Island, Canada, an island in the Hudson Bay
* Split Island, Falkland Islands
* Split Island, Fiji, better known as Hạfliua
Arts, entertai ...