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Essay
The Specter of a Circuit Split: Isaacson, Bankshot, and § 1983
Quinten J. Rimolde
Quinten J. Rimolde is a J.D. Candidate at The University of Chicago Law School, Class of 2026.

He thanks Will Horvath, Brandon Stras, Graham Kingwill, Professor William Baude, and the entire University of Chicago Law Review Online team.

At first glance, the Ninth Circuit’s decision in Isaacson v. Mayes (2023) set the stage for the perfect law review student comment. It called out the Eleventh Circuit’s decision in Bankshot Billiards, Inc. v. City of Ocala (2011) by name. And the Congressional Research Service listed Bankshot and Isaacson among 2023’s circuit splits. By all accounts, the two circuits had split over a significant issue. They disagreed over whether a party needs to connect its injury to a constitutional right in order to establish standing for claims under 42 U.S.C. § 1983. Only one problem remained: the courts were on the same page. What emerged was the specter of a circuit split.

§ 1983
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Article
Volume 91.7
Judicial Dark Matter
Nina Varsava
Associate Professor of Law, University of Wisconsin Law School.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Michael A. Livermore
Class of 1957 Research Professor of Law, University of Virginia School of Law.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Keith Carlson
Tuck School of Business, Dartmouth College.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Daniel N. Rockmore
Professor, Department of Computer Science, Dartmouth College; External Professor, Science Steering Committee, Santa Fe Institute.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Judicial reform aimed at rectifying historical inequalities understandably focus on increasing the number of women and people of color on the bench. This Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments: the understudied and opaque practices of judicial administration. Through an empirical study of federal appellate decisions, we find systematic gender and racial imbalances across decision panels. These imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, distorting the representation of judges in reported cases. Our findings suggest that assessing the distribution of legal power across gender and racial groups based on the numbers of judges from these groups may create an inflated sense of the influence of judges from underrepresented groups. We propose reforms to protect against the demographic biases that we uncover.

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