Nonpublication in the United States District Courts: Official Criteria Versus Inferences from Appellate Review

Abstract

r he past two decades have witnessed an increasing number of empirical analyses of the votes of judges in the lower federal courts (e.g., Richardson and Vines, 1970; Carp and Rowland, 1983; Atkins, 1972; Goldman, 1966; Goldman, 1975; Vines, 1964; Dolbeare, 1969; Johnson, 1979; Kritzer, 1978; Howard, 1981; Songer, 1982; Walker, 1972). Although great variety in the methods employed may be found in these empirical studies, virtually all of them share one approach common to Supreme Court studies: their analysis of judges' decisions and votes is restricted to data obtained from the published of the courts. While the focus of empirical analysis has been on the published of courts, a large number of cases are decided without an accompanying published opinion. phenomenon is most evident in the district courts where fewer than 10% of cases terminated by court action have published (Vestal, 1970). A vast body of data on the outputs of the federal courts therefore remains largely unexplored by public law scholars. As Carp and Rowland suggest, We know very little about the contents or impact of these many unreported opinions (1983, p. 17). present study attempts to shed some light on the similarities and differences between published and unpublished district judge decisions by analyzing the treatment of each on appeal. primary outlet for the publication of federal trial court is the Federal Supplement compiled by West Publishing Company. rates of opinion publication vary widely among judges. A study of opinion writing in 1968 uncovered one district judge who had 36 published during the year, while at the other extreme 30 judges published four or fewer (Vestal, 1970, pp. 676-77). criterion for publication decisions of federal judges was stated succinctly by the Judicial Conference in 1964: The judges of the courts of appeals and the district courts authorize the publication of only those which are of general precedential value. It is assumed that district and appeals court judges are called upon to decide many cases that require only the