My co-blogger Ken Anderson recently linked to my friend Amanda Frost’s provocative article, Overvaluing Uniformity, in which Amanda makes the case that the federal courts should not be overly concerned with whether federal law is uniform. I disagree, and I think the source of my disagreement is mostly on the question of whether and how lack of uniformity impairs the predictability of the law. To be clear, this is only part of the paper, but I think it should have received more attention: As I see it, the predictability objection is more substantial than the article suggests.
In the section on the role of uniformity in ensuring that the law is predictable, the article argues that lower court disagreement does not significantly impair the predictability of the law:
[L]ower court conflicts over the meaning of a federal statute do not create more uncertainty than exists prior to any judicial ruling. If a federal statute is ambiguous, then the law’s requirements are unclear before any court has spoken, which would encourage litigation and leave citizens unsure about how to conduct their business, just as conflicting judicial interpretations would. For example, the uncertainty over whether workers’ compensation insurance premiums were entitled to priority under the Bankruptcy Code was not caused by the conflicting circuits’ views on that question, but rather by the lack of clarity in the Code itself. Indeed, conflicting decisions by circuit courts may often improve predictability, since at least the citizens in those circuits know what the law requires of them for the time being.
Thus, the article reasons, lack of uniformity is not a particularly pressing concern from the standpoint of predictability of the law. It may not be a good thing, but it’s not such a pressing concern that it should really occupy the courts as much as it does.
I think there are a few difficulties with this argument:
1. In a statutory case, it may well be that a statute is ambiguous before any court has interpreted it. But after one court has interpreted it, its meaning is much less ambiguous. Courts around the country will cite that decision as authority: It won’t be binding, but it will be weighed pretty heavily wherever uniformity is valued. If you start the timeline then, the key question becomes the impact of the subsequent decision that takes a different approach. That subsequent decision taking a different approach really does hurt the predictability of the law, as it creates considerable doubt as to what future courts will say the law is in all the places where the issue has not yet been decided.
2. The claim that “conflicting decisions by circuit courts may often improve predictability, since at least the citizens in those circuits know what the law requires” doesn’t seem very persuasive to me. Even if it is true that the law is then known in those circuits, most citzens will not live in those circuits. Most people will live in the circuits where the law is still unclear . And as noted above, lack of uniformity creates uncertainty by creating much more uncertainty about what the law is where the law has not yet been resolved.
3. Uniformity is not only geographic. You can also have a lack of uniformity between how federal and state courts interpret federal law in a particular jurisdiction. I think this is a particularly troubling kind of uncertainty. So for example, imagine the California Supreme Court interprets the Fourth Amendment to say that the police can do X, while the Ninth Circuit interprets the Fourth Amendment to prohibit X. It’s not even possible to say what the law is in that state, as it all depends on whether you’re litigating in state or federal court.
4. More broadly, I wonder if your view of uniformity depends on what area of federal law you have in mind. Lack of uniformity may be a big deal in some areas, and less of a big deal in others. The examples used in the article mostly involve administrative law and regulated industries, which already deal with lack of uniformity of state law. But I wonder if you get a different result if you look in an area like criminal law and procedure. In criminal law, uncertainty caused by lack of uniformity is not merely a nuisance or a business cost. Rather, it is the possibility that you’ll get tossed in jail for a long time for what you did even though some courts have already said that what you did is perfectly legal.
Finally, I suspect how you assess the judicial priority of uniformity depends in part on how you view alternative priorities. Inherent in the idea that the courts should focus less of their time on uniformity is the idea that they should focus more of their time on something else. But what is that something else? In my experience, there isn’t much agreement on that. Most Court followers have a wish-list, but no two wish-lists are identical. The alternative matters, I think. If the two choices are “make the the law uniform” versus “advance Warren Court precedents,” you’re talking about a very different set of options than if the two choices are “make the law uniform” versus “overturn Warren Court precedents.”