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

Abstract

Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of "secret" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as a decision to reverse the agency, track formal publication rules. Others, such as the number of judges on the panel who graduated from elite law schools or the number with expertise in the disputed subject, are more surprising. In addition, we discovered substantial evidence of partisan disagreement within unpublished opinions, suggesting that those cases are not as routine as publication rules suggest. These empirical findings should guide policy and constitutional decisions about the future of unpublished opinions.