In United States federal courts, a circuit split, also known as a split of authority or split in authority, occurs when two or more different circuit courts of appeals provide conflicting rulings on the same legal issue.Sup. Ct. R. 10(a); see also Tom Cummins & Adam Aft, Appellate Review, 2 59, 60 (2012) (discussing definition of the term "circuit split"). 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.Sup. Ct. R. 10(a). 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.Philip Allen Lacovara, 647 (2008) (internal quotation marks omitted).
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, while other scholars argue that variation among circuits allows local courts to experiment with new laws that reflect the values of the local residents.J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 913 (1983) (assessing arguments on both sides of the debate). 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 specifies that "[t]he 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."U.S. Const. art. III, § 1. In 1789, Congress created the first system of intermediate appellate courts, known as federal circuit courts, which had appellate jurisdiction over certain matters decided by district courts.Daniel John Meador & Jordana Simone Bernstein, 7 (1994); Ruth A. Moyer, Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts, 82 831, 836 (2014) (discussing history of federal circuit courts). These federal circuit courts consisted of two justices from the Supreme Court of the United States and one district court judge.Ruth A. Moyer, Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts, 82 831, 836 (2014). In 1891, Congress created the existing system of United States courts of appeals, which hear appeals from United States district courts within limited geographic areas.Daniel John Meador & Jordana Simone Bernstein, 7 (1994). For example, the United States Court of Appeals for the Fifth Circuit hears appeals originating from United States district courts in Louisiana, Mississippi, and Texas. 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.Arthur D. Hellman, "The Law of the Circuit" Revisited: What Role for Majority Rule?, 32 625 (2008); see also Fed. R. App. P. 35(a).
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.Arthur March Brown, Comity in the Fed. Courts, 28 589, 590 (1915) ("Each District Court is independent of every other District Court, each Circuit Court of Appeals of every other Circuit Court of Appeals."). Furthermore, cases decided in one circuit are not binding authority on other circuits.Chad Flanders, Toward a Theory of Persuasive Authority, 62 55, 77 (2009) ("[T]he fact that a court in a different circuit has ruled one way does not mean that all the circuits have to rule that way; indeed, even if every other court has ruled one way, this does not mandate the outcome for the remaining circuit."). 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."Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment, 65 1137, 1139 (2012). 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.See, e.g., Deborah J. Buswell, Foreign Trade Antitrust Improvements Act: A Three Ring Circus — Three Circuits, Three Interpretations, 28 979 (2003).
Significance Some scholars criticize the existence of circuit splits,See, e.g., Trevor W. Morrison, Fair Warning & the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 455 (2001). 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.See, e.g., J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 913, 923, 929 (1983). 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."J. Harvie Wilkinson III, If It Ain't Broke . . ., 119 67, 69 (2010).
Criticisms of circuit splits Legal analysts have identified problems associated with circuit splits.Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits & the Fourth Amendment, 65 1137, 1147–48 (2012) (noting that researchers have identified "unique problems they present"). Jesse M. Boodoo, for example, suggests that circuit splits create a state of confusion and uncertainty for citizens.Jesse M. Boodoo, Compounding Problems & Compounding Confusion: Federal Regulation of Compounded Drug Products & the FDAMA Circuit Split, 36 220, 243 (2010) ("The split between the Fifth and Ninth Circuits on the severability of the FDAMA creates a confusing state of affairs."). 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."Daniel J. Meador, A Challenge to the Judicial Architecture: Modifying the Regional Design of the U.S. Courts of Appeal, 56 603, 640 (1989). Additionally, Wayne A. Logan has argued that if courts speak with a unified voice, this will "secure popular respect for judicial authority."Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits & the Fourth Amendment, 65 1137, 1173 (2012). Likewise, Matthew Lund cautions that circuit splits will lead to forum shopping, where litigants flock to jurisdictions with more favorable laws.See, e.g., Matthew Lund, Rockwell International, Pondcrete, and an A La Carte Three-Step Test for Determining an "Original Source" in Qui Tam Lawsuits, 2008 1243, 1244 (2008). Judge Kimberly A. Moore also suggests that circuit splits and forum shopping lead to economic inefficiency because outcomes are unpredictable and litigants are less likely to settle.See, e.g., Kimberly A. Moore, Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation?, 79 889, 893-94 (2001).
Scholars have also argued that inconsistent application of laws in different circuits is inherently unfair.See, e.g., Kiran H. Griffith, Fugitives in Immigration: A Call for Legislative Guidelines on Disentitlement, 36 209, 243 (2012) (arguing that it is "intolerable" for one result to be reached "in one circuit and the opposite result in another"). 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.Trevor W. Morrison, Fair Warning & the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 455 (2001) (discussing due process implications of circuit splits in federal criminal law). 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.Retrospective Application of State Firearm Prohibitions Triggering Enhanced Sentencing Under Federal Law: A Violation of the Ex Post Facto Clause? The Circuits Split, 27 307, 323 (2001) (discussing ex post facto application of law). 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.Jesse M. Boodoo, Compounding Problems & Compounding Confusion: Federal Regulation of Compounded Drug Products & the FDAMA Circuit Split, 36 220 (2010) (discussing challenges with FDA's initial assertion of regulatory jurisdiction over compounded drugs in light of existing circuit split).
Arguments in favor of circuit splits