Submerged Precedent

118 Pages Posted: 17 Jan 2016

See all articles by Elizabeth Y. McCuskey

Elizabeth Y. McCuskey

Boston University - School of Public Health; Boston University - School of Law

Date Written: September 4, 2015


This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.

Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.

This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.

Keywords: precedent, jurisdiction, federal-question jurisdiction, Grable, federal courts, district courts, removal, remand, unpublished opinions, empirical, dockets, PACER, E-Government Act of 2002

Suggested Citation

McCuskey, Elizabeth Y., Submerged Precedent (September 4, 2015). Nevada Law Journal, Vol. 16, p. 515, 2016, University of Toledo Legal Studies Research Paper No. 2016-01, Available at SSRN:

Elizabeth Y. McCuskey (Contact Author)

Boston University - School of Public Health ( email )

Boston, MA
United States

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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