TWELVE SISTERS RESEARCH PROJECT

The U.S. federal judiciary is the organ of national government responsible for the authoritative resolution of disputes arising under federal law. For reasons related to its historical institutional development, the system is itself a source of conflict through the issuance of non-uniform holdings by the twelve circuit courts of appeals. Due to the regional independence of these ‘sister circuits’ and the limited supervisory capacity of the U.S. Supreme Court, a substantial proportion of circuit conflicts—or circuit splits—appear to linger indefinitely. This phenomenon makes possible the cultivation of distinct bodies of national law in the twelve regions over which the appellate courts preside.

Debate centers on whether regional independence and the propensity for conflict constitutes an intolerable flaw or a beneficial feature of the U.S. federal courts. Though this debate is motivated in part by competing normative commitments, it largely turns on competing assumptions about the number of conflicts, their persistence, and the consequent costs and benefits to the legal system.

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The U.S. Federal Judiciary as a Polycentric Order

Stage one of this research project is a historical-institutional account of the origins and development of America’s decentralized federal court system, peculiar even among federal political systems. The present structure of the system and its embedded norms are far from inevitable features and were not the product of far-sighted conscious design. I examine the critical junctures of American political development that produced such a system.

The Costs of Conflict Among the U.S. Courts of Appeals

While the decentralized structure of the courts has benefits, many scholars and jurists warn that the regional accretion of national law also carries substantial costs which may prove intolerable in the context of American legal development. The concerns center on 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.

Stage two of this project examines newly-gathered data on 151 conflicts in four legal subject areas—employment discrimination, search and seizure, securities, and labor law—active from 1998-2010. As an initial effort to empirically evaluate the tolerability question, each conflict is assessed for (1) persistence, (2) the presence of characteristics that correlate with costs, and (3) legal significance.

A Multiplicity of Voices: Does Regional Independence Serve a Learning Function?

While some legal scholars express dismay over the costs of disharmony, others tout the benefits of intercircuit conflict—judicial learning through a process commonly described as “percolation.”

Stage three develops a theory of judicial-learning-by-percolation, derives several tests therefrom, and evaluates the intercircuit conflict data for patterns suggestive of judicial learning.

Comparing Federal Courts

Stage four is comparative-institutional. I survey several alternative institutional arrangements—some of which are employed in other federal political systems—and evaluate their desirability in light of the evidence adduced above.

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Overall, this project investigates whether the propensity for conflict and the regional accretion of law constitutes an intolerable flaw, a beneficial feature, or a trivial quirk in a decentralized national judicial system. It contributes to our understanding of American political development, federalism, law & courts, public administration, comparative politics, and institutional theory.