There Is No Such Thing as Circuit Law

By Thomas B. Bennett. Full Text.

Lawyers and judges often talk about “the law of the circuit,” meaning the set of legal rules that apply within a particular federal judicial circuit. Seasoned practitioners are steeped in circuit law, it is said. Some courts have imagined that they confront a choice between applying the law of one circuit or another. In its strong form, this idea of circuit law implies that each circuit creates and interprets its own body of substantive law that is uniquely applicable to disputes that arise within the circuit’s borders.

This article argues that the notion of circuit law is nonsensical and undesirable to boot. Federal circuit courts of appeals do not create or apply their own bodies of law. Instead, they interpret and apply a uniform body of federal law, and their interpretations are subject to reversal by the Supreme Court. To conclude otherwise would deeply undermine the animating purpose of federal law: national uniformity.

To be sure, courts of appeals issue decisions that can have binding effect not only on the parties before them but also on litigants in future cases, lower courts within the circuit, and even future panels of the same court. But those effects are produced by the rules of horizontal and vertical stare decisis. They do not derive from the existence of a unique body of “circuit law” that must be applied in certain cases, in the same way that federal judges must apply state law in diversity cases. Much of the time, practitioners’ reference to “circuit law” is an understandable shorthand for the body of circuit precedent on an issue.

But not always, and that’s where the trouble starts. In recent decades, many courts of appeals have begun conceiving of their body of collective precedent as something more, something akin to a body of substantive law in the choice-of-law sense. Call this the “myth of circuit law.” The myth has led courts and commentators astray across such diverse areas of law as patents and trademarks, qualified immunity, venue and multidistrict litigation, and administrative law. Widespread issues like the Federal Circuit’s refusal to answer novel and important questions of federal law for itself, and nearly every circuit’s artificially narrow approach to determining what constitutes clearly established law, can be traced to the myth of circuit law.

This article identifies and unpacks the myth of circuit law in three ways. First, it traces the institutional changes that set the stage for the myth of circuit law to take root. Second, it illustrates the mischief the myth has caused and makes the doctrinal case for why the myth is just that. Third, it builds a pair of theoretical arguments for why the myth is inconsistent with our system of judicial federalism.