Polycentricity in the American Judiciary

• In Event: Legal Doctrines and Their Political Effects

Abstract

For reasons related to its historical institutional development, the U.S. federal judiciary routinely introduces non-uniform interpretations of national law through the issuance of conflicting holdings by the circuit courts of appeals, the intermediate tier of its three-tiered hierarchy. High caseloads, limited Supreme Court review, and the absence of a formal consensus mechanism among these courts of regional appellate jurisdiction make occasional disagreement inevitable and potentially long-enduring. While some legal scholars express dismay over the costs of disharmony, others tout a potential benefit—judicial learning through a process commonly described as “percolation.” This paper articulates a theory of judicial-learning-by-conflict, derives several tests therefrom, and evaluates newly-gathered data on intercircuit conflicts for evidence of learning. This study advances our understanding of judicial behavior and institutional polycentricity.

Author

• A.K. Shauku, Buffalo State University (SUNY)