Most federal intermediate appellate court opinions are “unpublished”— they have no precedential value, even though they are readily available in online databases. Most research on judicial behavior is based on analyses of published opinions. If a court’s decisions not to publish are based on factors relevant to behavioral research, exclusion of unpublished opinions may skew the results. Currently, the United States Court of Appeals for the Seventh Circuit has the lowest percentage of unpublished opinions, while the United States Court of Appeals for the Fourth Circuit has one of the highest rates of unpublished opinions. Do the differences in publication rates demonstrate anything about the reasons that judges decide not to publish cases, and how do these reasons inform selection of cases for research on the courts? This Article concludes that the publication decision itself is a form of judicial behavior that is worthy of study, and that unpublished opinions should be considered in most research on the federal appellate courts.
Donna S. Stroud, The Bottom of the Iceberg: Unpublished Opinions, 37 Campbell L. Rev. 333 (2015).