Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals

For more than a quarter century, the United States Courts of Appeals have maintained two bodies of law. One is published, widely disseminated, and fully precedential. The other, now encompassing nearly 80% of all dispositions on the merits,' is unpublished, erratically distributed, and rarely precedential. What distinguishes these two sets of cases?

Is it possible to predict why judges publish opinions in some cases while resolving others through unpublished opinions, memoranda, or judgment orders? Each court has formal rules governing the publication of opinions, but those standards fail to account for variations in publication. Despite substantial overlap among circuit rules, publication rates differ widely among courts and even among individual judges. In 1999, the Fourth Circuit published opinions in only 9.9% of cases disposed of on the merits, while the First Circuit published opinions in 54.6%.3 Chief Judge Richard Posner of the Seventh Circuit published 181 majority opinions during a recent two-year period, while several judges from other circuits published fewer than twenty majority opinions apiece during the same years.

Differences in caseload are unlikely to explain such dramatic variations in publication rates; judges and circuits seem to differ in the type of cases they find worthy of publication.