Invisible Adjudication in the U.S. Courts of Appeals

46 Pages Posted: 10 Mar 2017 Last revised: 26 Apr 2017

Michael Kagan

University of Nevada, Las Vegas, William S. Boyd School of Law

Rebecca D. Gill

University of Nevada, Las Vegas

Fatma E. Marouf

Texas A&M University School of Law

Date Written: March 9, 2017

Abstract

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many – and in a few circuits, most – decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. The Article reviews the reasons why non-publication is a practical, constitutional and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a re-thinking of the way courts operate and the way scholars study them.

Keywords: Federal Courts, Legal Philosophy, Empirical Study of Law, Legal Research, Immigration

Suggested Citation

Kagan, Michael and Gill, Rebecca D. and Marouf, Fatma E., Invisible Adjudication in the U.S. Courts of Appeals (March 9, 2017). Georgetown Law Journal, Forthcoming; Texas A&M University School of Law Legal Studies Research Paper No. 17-24. Available at SSRN: https://ssrn.com/abstract=2930246

Michael Kagan (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Rebecca D. Gill

University of Nevada, Las Vegas ( email )

4505 S. Maryland Pkwy. Box 455029
Las Vegas, NV NV 89154
United States
7028952525 (Phone)
7028951065 (Fax)

HOME PAGE: http://www.rebeccagill.net

Fatma E. Marouf

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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