On the creation of Circuit splits

I have been critical of Judge Sutton for creating a Circuit split in the SSM cases. Specifically, I have been critical of the good judge for giving insufficient weight to the thoughts of his colleagues on the four Courts of Appeal that had previously gone the other way.

I have now read a fascinating article that touches on this subject, among other things. See Aaron-Andrew P. Bruhl, Following Lower-Court Precedent, 81 University of Chicago Law Review 851 (2014). The article is reviewed here.

It is a slog, but if you are interested in such things (a doubtful proposition, I suspect), read the entire article. That said, the most interesting part of the article from my perspective begins at page 925 (near the end) where the author illustrates the problem that Judge Sutton faced.

That the case the author uses to illustrate the point has to do with the Packers and Stockyards Act delights me because of my weird sense of humor. But, the serious question raised by the author (and I hope Judge Sutton thought hard about it) is this:

If all the Courts of Appeals have gone one way, but they were all wrong (from your perspective), what weight (say predictability) should the Circuit Judge considering the new case give to those previous cases from other Circuits?

The discussion that ensues is thoughtful and illuminating.


*H/t to How Appealing.

17 responses

  1. I respectfully disagree with the Oracle of Lincoln. Every federal judicial officer is an independent judge and has an obligation to call it the way they see it even if they disagree with all prior rulings on an issue, unless there is binding precedent and then they should dissent or if district court judge follow the binding precedent but state your disagreement. Of course, after I read the article, which I am printing out, I reserve my right to agree with you🙂

  2. As long as the judge can offer a coherent argument explaining why the other judges were wrong, he or she has a duty to dissent.

  3. I very much enjoyed reading this law review article especially Sections I and III . Like much in law review articles I thought the middle section was contrived and added little to the value of this otherwise well written article. The bottom line seems to be that the Justices call it like they see it, just like us bottom feeders.

  4. I remember talking to a Court of Appeals judge about this very issue. He pointed me to a case (which I currently cannot remember) in which 11 circuits had gone one way on an issue and only 1 circuit had gone the other way. SCOTUS sided with the 1 circuit in a 9-0 opinion. He said that although we thinks long and hard before creating a circuit split, a heard mentality can be problematic as well.

  5. Absolutely. I had the pleasure of writing the brief and then second-chairing the argument in Ratzlaf v US, 510 U.S. 135 (1994), which addressed the meaning of “willfulness” in the anti-structuring federal criminal statute. The circuits were split something like 9-1 against us when cert was granted. We won at SCOTUS 5-4, with an opinion that went further for the defense position than the one circuit that was ostensibly on our side of the split.

  6. pdgba and others,

    In many cases, a Court of Appeals judge should do what he or she believes is correct even in the face of conflicting authority from other Circuits. But I also believe that such a judge should be very cautious in those circumstances because the consequences of creating a Circuit split are great. It is a matter of judgment where judicial modesty is a particularly important attribute.

    All the best.


  7. You might find the attached quote of the First Circuit in In re Atlas IT Exp., LLC, 2014 U.S.App. LEXIS (1st Cir. 2014) of interest:

    “We do not diminish the importance of the other circuits supporting the blanket rule (which is what we call it). But we see nothing inherently troubling about contributing to a circuit split. The numbers favoring a rule do not necessarily mean that the rule is the best one. Indeed, there is an observable phenomenon in the courts of appeal and elsewhere – sometimes called ‘herding’ or ‘cascading’ – where decision makers who first encounter a particular issue (i.e. the first court to consider a question) are more likely to rely on the record presented to them and their own reasoning, while later courts are increasingly more likely to simply go along with the developing group consensus. We think it is always incumbent on us to decide afresh any issue of first impression in our circuit.”

  8. Stanley,

    Great quote. But the sentiment is like all truisms–it is a platitude. While creating a Circuit split is not “inherently troubling,” it not something to be desired either. Indeed, by uttering the bromide the First Circuit says as much.

    Nevertheless, I appreciate your taking the time to write. All the best.


  9. If there were no circuit splits, the Supreme Court would have even less work to do. I dissent from the Oracle of Omaha, circuit splits help refine the law and are healthy so long as the Supreme Court resolves the vast majority of them. They are like dissents which sometimes establish that there are different and sometimes better ways of deciding a legal issue than the “herding” instinct achieves.

  10. Mark,

    There is another way of looking at our differing views on Circuit splits. You are a troublemaker and I am lazy!

    All the best.


  11. Well, Rich, you are batting .500 which is quite good – that is a ALL Star percentage . You are far from lazy.

  12. Rich, no way was I offended, I was laughing at how accurate your assessment was of me and how wrong of you🙂 All my best, dear friend.

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