FEDERAL COURTS LAW REVIEW -- 2008 Fed. Cts. L. Rev. 1
Resolving Intra-Circuit Splits in the Federal Courts of Appeal
By Michael Duvall *
It is not uncommon for two panels of the same circuit court to
reach conflicting conclusions after considering the same issue.
Consequently, a subsequent panel addressing the issue will face
a precedential quandary, because each party to the appeal will have
precedent favoring its position. In order to resolve these dilemmas,
known as intra-circuit conflicts, many federal courts of appeal
have developed principles to guide the third panel. Not surprisingly,
these courts have crafted different approaches, thus creating an
inter-circuit conflict regarding intra-circuit conflicts.
This article provides an overview of the development of precedent
in federal circuit
courts through the use of three-judge panels and introduces the predicament of an intra-circuit split. The article then outlines the conflicting approaches to resolving these splits and evaluates their respective advantages and disadvantages.
* Michael Duvall is an associate at Bryan Cave LLP and was a law clerk to the Honorable Pasco M. Bowman, II, United States Court of Appeals for the Eighth Circuit, in Kansas City, Missouri. This article does not necessarily reflect the views of Bryan Cave, Judge Bowman, or the judges of the Eighth Circuit.