Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals

Abstract

Federal judges resolved more than eighty-seven percent of appeals through unpublished opinions over the past five years. These dispositions are non-precedential and typically contain abbreviated reasoning. Such high rates of nonpublication may be difficult to reconcile with the core values of the federal judiciary—values grounded in precedent, reason-giving, and equal treatment. After intense attention to the prevalence of unpublished opinions some fifteen years ago, far less attention has been paid to the phenomenon in recent years. But a new debate is beginning to emerge.

This Article makes three contributions to the ongoing conversation. First, it brings hard data to the debate. Drawing on a dataset of over 400,000 appeals from the Federal Judicial Center and a sample of more than 1,400 unpublished opinions randomly selected from six federal circuits, this Article examines nonpublication rates across several dimensions, including case type, party type, and outcomes. For example, from 2008 to 2018, pro se, or as we will refer to them, self-represented, appellants were twelve times less likely to receive a published opinion than appellants represented by counsel. Appeals initiated by incarcerated people and immigrants also had publication rates significantly below the baseline for all appeals. In contrast, when the United States is the underlying plaintiff, opinions are published at a significantly higher-thanusual rate. These findings reveal a pattern of differential treatment that merits attention.

Second, we introduce an expanded theoretical framework for evaluating unpublished opinions. Rather than focusing on a single feature of these opinions (e.g., their nonprecedential status) we utilize a framework that highlights the dynamic tradeoffs involved in any system of publication and reveals that precedent, reason-giving, citation, and public dissemination—the primary features of judicial opinions implicated by nonpublication—combine to affect the legal system’s core values in complex, context-dependent, and sometimes offsetting ways.

Finally, an important takeaway from our piece relates to the serious transparency problems that pervade current nonpublication practices. Our work uncovered significant barriers to accessing and studying unpublished opinions on a large scale. These barriers make it difficult for scholars, the public, and even some judges to find these opinions, much less to study them and understand the effects of nonpublication on the judicial system and those who participate in it.

Keywords: civil procedure, unpublished opinions, pro se, acces to justice, federal courts