Tuesday, November 27, 2018

Circuit Splits!

map shows four circuits on left, six on right, divided by jagged lines

Circuit split. Original map (pre-splitting) from U.S. Courts

The United States Courts of Appeals are divided into geographic circuits, numbered first through eleventh, plus the D.C. Circuit and Federal Circuit. By and large, their interpretations of federal law are consistent. But sometimes one circuit's interpretation differs from another, creating a "circuit split."

Circuit splits often show points of tension in the law. It's not that the judges are disagreeing just to disagree. Smart, well-meaning judges can reach different conclusions on tough issues. Eventually, one side might persuade the other, Congress might enact a law resolving the difference, or the Supreme Court will agree to hear a case that will settle the question. 

In the meantime, lawyers and legal scholars keep an eye on the splits. When you're looking for a paper topic—some area of the law where your analysis could shed some light—check out circuit splits.

One great tool? Bloomberg Law's U.S. Law Week Circuit Splits Table.

For example, I skimmed Circuit Splits Reported in U.S. Law Week—October 2018 and found this:
Criminal Law 
Case: United States v. Schonewolf, 87 U.S.L.W. 677, 2018 BL 366122
Issue: May a defendant’s need to enter rehabilitation be given any weight during her revocation hearing?
The Third Circuit joins the First, Second, Fourth, Fifth, Sixth, and Eighth Circuits, saying it may be given some weight. The the Seventh, Ninth, Tenth, and Eleventh Circuits say any consideration of rehabilitation during sentencing is impermissible.
I took a map of the circuits and made the split graphically. In the picture at the top of this post we see six circuits split off on the right, four to the left, and the third and D.C. circuits in a gray area in the middle, since they haven't reached the issue. (I'm not using "right" and "left" to suggest political slants. It just happened that most of the circuits on one side of the issue were on the right, or east, side of the map.)

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