Breaking the Vicious Cycle Fragmenting National Law

One of the most troubling and increasingly overlooked problems plaguing the federal judiciary has been the reduction of throughput at the Supreme Court and the resulting fragmentation of national law. The imperative to resolve circuit splits has taken a back seat as the Court grapples with high-profile battles and the relentless crush of certiorari petitions. This fuels confusion and greater fragmentation of national law. Add in the general expansion of national law, and the vicious cycle intensifies.

This Article proposes a solution for expanding structural capacity to address fragmentation that does not require legislative reform or constitutional amendment. It utilizes a procedure already within the Supreme Court’s toolbox, although with a twist: where the Justices encounter a clear circuit split that does not rise to the Court’s certiorari threshold, the Court should grant, vacate, and remand (“GVR”) the matter to the circuit court for en banc review. The Supreme Court would, of course, retain authority to review the en banc decision.

This reinvigoration of one of the judiciary’s core functions holds the promise of enhancing the rule of law, curtailing forum shopping, reducing litigation costs, and promoting equity and economic productivity. It would require the Supreme Court to take on a more managerial approach to percolating national law and ask the appellate courts to assume greater responsibility for confronting intercircuit and intracircuit divisions.

* Koret Professor of Law, Director, Berkeley Center for Law & Technology, Faculty Director, Berkeley Judicial Institute, University of California, Berkeley, School of Law.

** Professor of Law, University of New Hampshire School of Law.

We thank Aaron-Andrew Bruhl, Judge Arthur Gajarsa (ret.), John Greabe, Arthur Hellman, Tejas Narechania, and Judge Jon O. Newman for their helpful comments on an earlier draft, and Milica Degges and Tiana Wang for their excellent research assistance.

The full text of this Article is available to download as a PDF.