Abstract:
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 non-uniformity, are an impediment to lawyering and judging, and have practical consequences for American law. Despite intercircuit splits' importance, there is almost no quantitative research about them. We created a unique original dataset that includes intercircuit splits that arose between 2005 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 we show that splits are more likely to be resolved when they exhibit contemporaneous and growing 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, and the likelihood of resolution does not rise as time passes.