Considering The Costs of Circuit Conflict

The organ of national government charged with authoritatively resolving disputes over the meaning and application of national law frequently produces non-uniform interpretations of national law through the issuance of conflicting holdings by the circuit courts of appeals, the intermediate tier of its three-tiered hierarchy. High caseloads, limited Supreme Court review, and the absence of a formal consensus mechanism across regional appellate jurisdictions make occasional disagreement inevitable and long-enduring. While regional variation has potential benefits, there are also potential costs which some court watchers regard as intolerable. These costs include the propensity to cause unfairness to litigants, nonacquiescence among federal agencies to conflicting authority, economic harms to multicircuit actors, and repetitive litigation from litigants seeking to initiate or exploit circuit conflict. This paper makes two contributions. First, it conceptualizes concerns raised about regional variation in ways that render them susceptible of empirical assessment. Second, it exploits a novel data set of 151 circuit conflicts across four legal subject areas in an initial effort to empirically evaluate the merits of those concerns. Overall, I find that a non-trivial number of legally significant conflicts persist indefinitely, validating the concerns of critics. More study is needed to determine the net impact of this phenomenon on the fairness and efficiency of the judicial system.