Percolation Bleg:

My colleague Craig Lerner writes with the following question:

Can people please point me to cases in which the Supreme Court let a circuit split "percolate" (that is, fester) for years and years, before it bothered to address the issue? A recent example would be the 2005 case Dura Pharmaceuticals v. Broudo, where the circuits were split for nearly a decade on the meaning of "loss causation" in securities cases.

If you can point to any such cases, please post them in the Comments or contact Craig directly.

Nobody Special:
There's quite a split among the circuits about what "cocaine base" means for the purposes of federal criminal sentencing, especially now that the Guidelines are advisory and their definition no longer controls.
10.27.2006 10:29am
MichaelW (mail) (www):
There is currently a split in the the Circuits regarding the standards to be met for "substantive consolidation" in Bankruptcy cases. The most recent decision that I can think of was in the 3rd Cir., by J. Ambro, which has not been well received.
10.27.2006 11:27am
May be wrong here, but isn't there currently a split about the validity of "shrink-wrap" contracts (Terms of Service, End User License Agreements, etc.)
10.27.2006 11:52am
William Spieler (mail) (www):
There's a split on the test to use in nominative fair use cases in Trademark law. There's clearly a split a year old between the Third and Ninth Circuits (Century 21 Real Estate v. Lendingtree, 425 F.3d 211 (3rd Cir. 2005)), although the Third Circuit claims that other circuits have not adopted the New Kids test either, in cases at least 8 years old.
10.27.2006 12:02pm
Apu (mail):
Here's one the SCt has actually agreed to resolve: whether a state drug felony, which would be a misdemeanor under the federal drug laws, is a "felony punishable under the Controlled Substance Act." As far back as 1996, the 2d Cir. said "No", see Aguirre v. INS, 79 F.3d 315, and the 5th Cir. soon said "Yes," see US v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997). (There's an old First Circuit case, Restrepo, which I think comes out the same way as Hinojosa-Lopez.) Other circuits have continued to chime in over the years, until the Supreme Court granted cert this spring in Toledo-Flores v. US and Lopez v. Gonzalez, which was heard the first day of this Term.
Of course, the one case is in the criminal context, and the other in the immigration context, but it's the exact same statute, and I don't think anyone has suggested that there is a basis to have the same statute mean different things in the different contexts.
10.27.2006 12:09pm
Ted M:
The Court long let fester the split over whether a class action could be maintained in federal court if not all of the the class members' claims met the amount-in-controversy requirement for federal jurisdiction. This was finally resolved in Exxon v. Allapattah.
10.27.2006 12:19pm
GMUSL 3L (mail):
More in trademark law -- each circuit has its own number of and specific Likelihood of Confusion factors; [These two following issues were decided in the recent trademark act, not SCOTUS] Whether the previous (not the recently-signed) trademark dilution act encompassed both blurring and tarnishment; whether the dilution statutes required actual dilution or a likelyhood of dilution.

A whole bunch of aspects in Copyright law on which the 2nd and 9th Circuits differ, and have for decades.

Since the Hatch-Waxman Act, the 6th, 11th, and 2nd Circuits each have their own antitrust approach to reverse-payment settlements in ANDA infringement litigation, though I'm not quite sure how long this has been percolating, but I definitely agree with the 2nd Circuit approach.
10.27.2006 12:29pm
GMUSL 3L (mail):
Oh, ones that SCOTUS has bothered to address... nevermind. I thought he just wanted long-standing circuit splits.
10.27.2006 12:29pm
Justin (mail):
Whethere there is a cost-plus intermediary exception to the Illinois Brick rule requiring privity for damages in antitrust actions.
10.27.2006 12:37pm
Justin (mail):
Oh, I also did not realize that it had to be one the Supreme Court then DID address. I was thinking, there must be a TON of these!
10.27.2006 12:39pm
Richard Riley (mail):
I don't have time to look right now, but I am pretty sure there are a number of Supreme Court federal income tax decisions that resolved circuit splits that had lasted at least a decade. Maybe Estate of Dickman (1984), resolving whether no-interest loans were a gift?
10.27.2006 1:03pm
Mark Eckenwiler:
There's a longstanding split on the scope of the Wiretap Act's statutory suppression rule (18 USC 2515 &2518(10)). The Sixth Circuit holds that there is an implicit "clean hands" rule, paralleling Fourth Amendment law, that allows the government to make evidentiary use of illegal recordings made by *private* actors. Other circuits (including the 3rd and 9th) have taken the position that suppression is available regardless of whether the interception involved state action.
10.27.2006 2:09pm
Steven Teles (mail):
There's a substantial discussion of this in HW Perry's book Deciding to Decide.
10.27.2006 2:19pm
Closet Libertarian (www):
I think this is only a few years old but SLUSA removal is a real mess. One california court actually interpreted 15 USC sec 77va and 77pb to mean that state based securities claims could be removed to federal courts while some federal claims must be remanded to state court. 5th cir finds the opposite.

Standards for dismissal seem applied differently if not stated differently.
10.27.2006 3:11pm
There are all types of questions percolating about basic jurisdictional issues. Here is a basic split, at least for the Fifth Circuit: Irving v. Owens-Corning Fiberglas Corp., 864 F.2d 383, 386 (5th Cir. 1989), cert. denied, Jugometal Enters. for Imp. &Exp. of Ores &Metals v. Irving, 493 U.S. 823 (1989) ("Because the [Supreme] Court's splintered view of minimum contacts in Asahi provides no clear guidance on this issue, we continue to gauge [the nonresident defendant]'s contacts with Texas by the stream of commerce standard as described in World-Wide Volkswagen and embraced in this circuit."). Discussed in Conflict of Laws Analyses for the Era of Free Trade, 20 Am. U. Int'l L. Rev. 1147. (self promotion).
10.27.2006 3:14pm
Maritime Law is a good place to start. There are areas that don't get touched by the SC ever.
10.27.2006 3:15pm
Greedy Clerk (mail):
Wow! That your colleague even asks this question is amazing. Circuit splits not getting review are the rule; not the exception. Some time on Westlaw will reveal that. There are tons -- I would guess hundreds --- of Circuit splits on meaningful issues of federal law that have festered for much, much, much longer than the example Mr. Lerner put forward.
10.27.2006 6:20pm
Greedy Clerk (mail):
Someone please serve me up a dish of crow. I, like another commenter, misunderstood the question -- he is looking for ones that SCOTUS actually decided to finally address. Another example from securities law would be SCOTUS's decision in Central Bank from 1994. As I recall, that very important split had been festering for 15-20 years -- and the Court adopted the clear minority view.
10.27.2006 6:23pm
Dan Schmutter:
This isn't quite so old yet, but in 2001 the Fifth Circuit came down with U.S. v. Emerson in which it held in a very long opinion that the Second Amendment guarantees an individual right to keep and bear arms.

In 2002, seemingly in direct response to Emerson, the Ninth Circuit came down with Silveira v Lockyer, holding, also in a very long opinion, that the Second Amendment does not guarantee an individual right to keep and bear arms. In fact, the Ninth Circuit specifically disagreed with Emerson in its opinion.

This will no doubt percolate for quite some time before the Supreme Court addresses it if it ever does.

10.27.2006 6:58pm
SPECTRUM SPORTS, INC. v. McQUILLAN, 506 U.S. 447 (1993). The 9th Circuit had its own standard for attempted monopolization for several decades before SCOTUS reversed it.
10.27.2006 11:42pm