Document Type

Article

Publication Date

1998

Abstract

The time has long passed when the Supreme Court resolved every intercircuit conflict properly brought before it in a petition for certiorari. Is that a problem we should be concerned about? Three decades ago, Congress asked the Federal Judicial Center, the research arm of the federal judiciary, to conduct a study to ascertain “the number and frequency of conflicts among the judicial circuits … that remain unresolved because they are not heard by the Supreme Court.” Congress further requested that the Center determine the extent to which the unresolved conflicts are “intolerable.” The Center asked me to design and conduct the study. The study found that although the number of unresolved conflicts was larger than previous studies had suggested, the numbers alone gave a distorted picture of the phenomenon. Most of the conflicts that the Supreme Court does not hear either do not generate any of the consequences that might make them “intolerable” or do so only for a short period of time.

Subsequently, I undertook another empirical study of unresolved intercircuit conflicts. It contained two elements. First, I investigated the later history of the conflicts identified in the initial project. Second and more ambitiously, I carried out a unique program of field research that included individual and group interviews of attorneys, examination of continuing legal education materials, and an in-depth survey of members of two specialty bars.

This article reports the results of this later research. The principal conclusion is that the problem of unresolved conflicts exists only if you look for it—and look for it in a certain way. If you concentrate your attention on individual court of appeals decisions that create conflicts and on individual denials of certiorari in conflict cases, you will see (in the words of Chief Justice Rehnquist) “a judicial ‘darkling plain’ where ignorant armies [clash] by night.” But if you look at the conflict issues over a period of time and in context, you will find, if not certitude, a landscape in which courts build upon and reexamine one another's decisions in the untidy but constructive tradition of the common law..

The field research also suggests a broader point. The very language that we use to talk about conflicts may convey a misleading picture of what is going on. We say that an “issue” gives rise to a “conflict” that the Supreme Court “resolves” (or does not “resolve”). This language implies that the dimensions of the “issue” remain unchanged from the first decision through consideration by two or more courts of appeals and ultimate resolution by the Supreme Court. The implication is probably correct when the issue is binary and discrete – for example, the “Cartwright issue” (whether mutual fund shares in a decedent’s estate are to be valued at the bid price or the asked price). For

other issues, however, the reality will not be so straightforward. Judges and lawyers may continue to frame the issue in the same words, but beneath the verbal identity may lie important differences in the propositions that are accepted as part of the legal landscape and those that are viewed as litigable. Similarly, when the Supreme Court does intervene, its decision may end up reshaping the framework for litigation and counseling about an issue rather than closing a chapter in the particular area of the law.

This pattern can be viewed as a departure from the traditional model of lawmaking by appellate courts. In that model, as memorably described by Lord Mansfield, the law “works itself pure from case to case.” In the situation I have just outlined, the law never “works itself pure;” rather, uncertain boundaries and gray areas characterize the legal landscape as long the issue, in some form, remains alive.

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