The Development and Resolution of Conflict Among Federal Appellate Courts

Circuit splits, arising when U.S. Courts of Appeals create contradictory legal rules, are one of the most important phenomena in American law. Making up a significant proportion of the Supreme Court’s docket, cases involving conflicts among federal appellate courts – or circuit splits – present important legal questions, and their resolution often has a profound impact on future case law. Despite their importance, however, little is known about the conditions under which these conflicts are resolved, or the dynamics underpinning their resolution. This dissertation analyzes intercircuit conflicts as vehicles for Supreme Court policymaking, which Justices use to glean information about the level of resistance that nationally-binding precedent might encounter in the lower courts.

Using an original dataset of conflicts drawn from all petitions for certiorari that came before the Court in its 1986 and 1987 terms, the studies in this dissertation reach several findings that illuminate various aspects of conflict. Taking up the question of why the Court resolves some conflicts, but not others, Chapter 2 reports that the Court is more likely to resolve splits when it has more ideological allies among the lower courts involved in the conflict. Turning to the resolution of conflict cases, Chapter 3 shows that the justices make policy sacrifices at the merits stage, accommodating to the side of the conflict that is ideologically furthest from the median when there appears to be a consensus among lower courts favoring that side. This effect is specific to justices near the Court’s median, for whom the costs of accommodation are lowest, and also to cases in which lower courts have primary control over the implementation of the legal rule in future cases. In an investigation of lower court behavior, Chapter 4 presents evidence that position-taking in a conflict is independent of the prior history of decisions in the split, and that when the Supreme Court alters precedent across more circuits in its resolution of conflict, the amount of resistance to implementation of its opinion increases. Overall, this dissertation provides an account of conflict and a novel source of data that can contribute to debates surrounding federal judicial reform.