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

Nearly four out of every five federal court of appeals opinions are unpublished. For more than twenty-five 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 The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continuing controversy over the role of unpublished opinions in the federal system, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and using multivariate statistical methods, Professors Merritt and Brud-ney were able to identify numerous factors associated with 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. Merritt and Brudney also discovered substantial evidence of partisan disagreement within unpublished opinions, suggesting that those cases are not as routine as publication rules seem to assume. These empirical findings should guide constitutional and policy deliberations about the future of unpublished opinions.