Document Type
Article
Publication Date
2024
Abstract
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 bane review. The Supreme Court would, of course, retain authority to review the en bane 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.
Recommended Citation
Ryan Vacca and Peter S. Menell,
Breaking the Vicious Cycle Fragmenting National Law, 2024 University of Illinois Law Review 353
(2024).
Available at: https://scholarship.law.missouri.edu/facpubs/1299