NCJ Number
117360
Date Published
1989
Length
9 pages
Annotation
In petitioning for a writ of certiorari from the U.S. Supreme Court, the issue most likely to be accepted for review by the Court is one that has created a conflict between the lower courts.
Abstract
The Court identifies a conflict among the lower courts as the reason for granting certiorari in about one-third of its argued cases. In preparing a petition using the conflicts rationale, the Court's current view of this rationale should be appraised. Recently, many justices have been following the 'percolation' theory of conflicts jurisdiction. Under this theory, a conflict is allowed to continue in the lower courts until all theories and factual situations have been explored, and it is apparent that no consensus can be reached. Under this conflicts theory, the petitioner must show that the conflict is a 'true' conflict, that the conflict is recurring, and that it is important. A 'true' conflict is what Felix Trankfurter called a 'head-on collision' between two courts, i.e., two courts reach conflicting decisions in similar cases. A true conflict can exist between two Federal circuits, between the highest courts of two States, or between a Federal circuit and the highest court of a State. A recurring conflict is demonstrated by showing that the issue has arisen frequently, not that most courts have favored the petitioner's position. In considering whether the case is important enough for the Court, the petitioner must recognize that the cases typically heard by the Court address the rights of action or remedies for violations of Federal civil and criminal statutes, not the conduct permitted or prohibited by those statutes.