Unpublished Decisions and Precedent Shaping: A Case Study of Asylum Claims

Abstract

The federal courts of appeal now publish fewer than twenty percent of their decisions. The effects of depriving so many decisions of precedential value are disputed. Critics believe selective publication harms law development and distorts legal doctrine, while selective publication’s defenders are unconvinced that the available evidence demonstrates pervasive problems in need of reform. Accounting for the flaws and limitations of past empirical assessments, this article provides the results of a study that was designed to establish a more concrete understanding of how selective publication impacts development of the body of law. The study draws on a comprehensive dataset of all asylum cases in the Ninth Circuit that addressed the issue of persecution over a six-year period. The results show that the court incorrectly perceived how often it reached certain outcomes in past decisions, because many of the outcomes were buried in unpublished dispositions. Additionally, many of the rule statements the court applied in unpublished decisions contradicted rules it promulgated in its public decisions, which indicates the “book law” is not completely settled. The court also reached inconsistent outcomes regarding a significant percentage of its unpublished cases. Finally, panels failed to address highly germane precedents that losing parties raised in their briefs. These shortcomings collectively suggest that appellate courts should reassess their case management procedures.

Keywords: precedent, published decisions, published opinions, unpublished decisions, unpublished opinions, non-precedential, nonprecedential, empirical, law development, judicial process, case management, asylum, persecution, persecute, Ninth Circuit, court of appeals

JEL Classification: K00, K10, K19, K30, K39, K40, K41, K42, K49