Document Type


Publication Date

November 2008

First Page



"E NSURING the uniform interpretation of federal law has long been considered one of the federal courts' primary objectives, and uniformity is regularly cited in some of the most intractable debates about the structure and function of the federal court system. For example, specialized courts are lauded for their ability to ensure uniformity in the areas of law over which they have jurisdic- tion. Similarly, proponents of exclusive federal jurisdiction contend that the federal courts provide greater consistency in the interpre- tation of federal law than could fifty different state courts. Some commentators claim that Congress' power to create exceptions to the Supreme Court's appellate jurisdiction is limited by the need to preserve the Supreme Court's role as harmonizer of divergent in- terpretations of federal law. Not only is uniform interpretation of federal law assumed to be desirable as a matter of policy, some judges and scholars claim that the Constitution requires federal courts to standardize the meaning of federal law for the nation. The preoccupation with uniformity is perhaps best illustrated by the U.S. Supreme Court's docket: seventy percent of Court's ple- nary docket is devoted to addressing legal issues on which lower courts have differed, and law clerks and Justices alike have ac- knowledged that ensuring uniformity is a driving force in case se- lection.' Although the Supreme Court Rules state that the Court gives priority only to "important" federal questions on which the lower courts have differed,2 a glance at the cases resolved each term suggests otherwise. In addition to high profile cases address- ing issues such as restrictions on abortion and affirmative action, there are a number of decisions resolving circuit splits on matters that are close to trivial. For example, did the Supreme Court really need to weigh in on whether a complaint delivered by facsimile had been properly served, or resolve the dispute about whether a sig- nature on a notice of appeal could be typed?' Would the nation's business have been disrupted if the circuits simply maintained their divergent rules on these questions? It appears the Supreme Court selected these issues for review solely because the lower courts were divided, not because the issues were of great significance for the nation.

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