On the creation of Circuit splits

I have been critical of Judge Sutton for creating a Circuit split in the SSM cases. Specifically, I have been critical of the good judge for giving insufficient weight to the thoughts of his colleagues on the four Courts of Appeal that had previously gone the other way.

I have now read a fascinating article that touches on this subject, among other things. See Aaron-Andrew P. Bruhl, Following Lower-Court Precedent, 81 University of Chicago Law Review 851 (2014). The article is reviewed here.

It is a slog, but if you are interested in such things (a doubtful proposition, I suspect), read the entire article. That said, the most interesting part of the article from my perspective begins at page 925 (near the end) where the author illustrates the problem that Judge Sutton faced.

That the case the author uses to illustrate the point has to do with the Packers and Stockyards Act delights me because of my weird sense of humor. But, the serious question raised by the author (and I hope Judge Sutton thought hard about it) is this:

If all the Courts of Appeals have gone one way, but they were all wrong (from your perspective), what weight (say predictability) should the Circuit Judge considering the new case give to those previous cases from other Circuits?

The discussion that ensues is thoughtful and illuminating.


*H/t to How Appealing.

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