Circuit splits “matter” for a variety of reasons. As I explained last Thursday (here), they matter to the nine Justices of the Supreme Court because such conflicts indicate that a particular case is worthy of their discretionary review (i.e., "ripe for review"). Attorneys, particularly the appellate bar, also care about circuit splits when deciding whether to petition the Supreme Court for review for the very same reason.
Conflicts of law that arise between the circuit courts, however, are equally important to students and teachers of the law. As the Lewis & Clark Law Library explains here, “[f]inding a topic is the first and often the most vexing challenge for law students writing a paper, note or comment for a class or law review.” Circuit splits provide great writing opportunities because their existence suggests that lawyers and judges were not able to come up with a viable, widely accepted solution to the problem on their own. Believe it or not, student notes have, in a few cases, contributed to the resolution of an issue that had previously divided the circuit courts.
For example, in an article entitled, "A Law Student in the Supreme Court: United States v. Drayton and the Future of Consent Search Analysis," a former law student recounts how his student note ultimately helped the Supreme Court resolve a circuit split:
In my third year of law school, I hit the student note lottery. Like thousands of law students, the year before I had analyzed a legal issue in my student note. Despite my passion for the issue, I felt like many others that this was a warming- up exercise, a preliminary to my real future as a lawyer. However, the narrow issue I examined soon came before the Supreme Court and months later, I found myself in the Supreme Court watching oral arguments in a case I helped prepare. I would like to tell my story not only to relive an amazing episode in my own new career, but also to remind law students of the powerful legal tool that the student note can be.
As one law professor has pointed out (see here), however, the downside to writing about circuit splits is the fact that the issues in question typically have a limited shelf life as viable writing topics given the likelihood that the Supreme Court will resolve the issue at some point.
While it may be obvious why circuit splits matter to law students looking for writing topics, less obvious is their usefulness to law professors. Perhaps as punishment for the puzzled 1L who, each semester, inevitably asks, “When are you going to stop making us read these stupid cases and give us the black-letter law?” at least one law professor has found a creative way to torture his students with circuit splits:
I'm not sure why someone would devote an entire blog to circuit splits, but it sure makes it easy to find good federal law problems for legal writing assignments. Creating a problem based on a well-established circuit split is a tried and true method for creating trial brief, appellate brief, and oral argument assignments for law students. Students assigned to each side of the case will find both helpful and harmful material when they research the problem, and so they'll learn how to handle both helpful and harmful legal authority. (See here.)
Stay tuned for my third and final installment of the “3 Reasons Why Circuit Splits Matter,” which will examine conflicts of law in the context of due process.
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