Missing Decisions

Significant numbers of federal appellate merits terminations—those decisions resolving appeals and other proceedings on the merits—are missing from Westlaw and Lexis, the leading commercial legal databases. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits huge percentages—at least 25% or more—of the courts’ self-reported merits terminations, which predominately include unpublished adjudications, never make their way to navigable databases.Although scholars have long considered how publication practices shapes access to court decisions—especially at the district court level—this is the first work to analyze commercial database access to unpublished federal appellate decisions. Since at least 2007, when a rule change permitted citation to unpublished decisions from the federal appellate courts, scholars widely have assumed that commercial databases for legal research capture nearly all—if not, in fact, all—federal appellate merits decisions whether designated for publication in the official Federal Reporter or not. Scholars have questioned that assumption previously in the immigration context. But it turns out that access problems extend well beyond the immigration context, and we have lacked navigable access to the complete work of the federal appellate courts for at least a decade.Unraveling that widely-held assumption raises concerns over our ability to navigate and uncover useful precedent and to determine basic information about how the federal system administers justice. We cannot understand and assess the work of the federal appellate courts without navigable access to what is missing. The solution is as simple as it is transformational: all final judge-issued decisions from the federal appellate courts should be publicly and freely accessible on court websites. The courts themselves must be responsible for this change. Their decisional issuance schemes are the culprits, and market pressures may not create sufficient incentive for private actors—the databases themselves—to undertake the steps necessary to recover what’s missing

Macro-Judging and Article III Exceptionalism

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of non-Article III decisionmakers (including law clerks, staff attorneys, and magistrate judges). These reforms have prioritized judicial control, power, and autonomy, and they have ensured the maintenance of a small, elite, and selective federal bench focused on only what they deem to be the most “important” federal work.Ultimately, “macro-judging” has enabled courts to maintain and perpetuate Article III exceptionalism—that is, the view that federal courts should be small, elite, and focused on “big” or “important” cases. Whether Article III exceptionalism comes from the near obsessive focus of scholars on the federal courts or is a byproduct of the commonplace desire to increase power in, recognition for, and autonomy over one’s work, the federal judicial culture of elitism that has developed carries significant risks for democracy. By exalting the federal judiciary as elite and special, the ordinary litigant in the civil system loses out on Article III attention. Article III exceptionalism may also foster a judicial culture that eschews restraint, as judges issue bolder, bigger rulings thought worthy of a high-profile federal judiciary. Each day brings new signs of the costs of unbridled and self-important federal courts: a Supreme Court emboldened to cast aside precedent disfavored by a new majority; intermediate appellate courts dismantling the administrative state; and district courts overriding national public health policy. To combat these challenges, this Article argues for a rethinking of the role of federal courts to reinvigorate their public-service mission—a return, perhaps, to Article III ordinariness

Macro-Judging and Article III Exceptionalism

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of non-Article III decisionmakers (including law clerks, staff attorneys, and magistrate judges). These reforms have prioritized judicial control, power, and autonomy, and they have ensured the maintenance of a small, elite, and selective federal bench focused on only what they deem to be the most “important” federal work.Ultimately, “macro-judging” has enabled courts to maintain and perpetuate Article III exceptionalism—that is, the view that federal courts should be small, elite, and focused on “big” or “important” cases. Whether Article III exceptionalism comes from the near obsessive focus of scholars on the federal courts or is a byproduct of the commonplace desire to increase power in, recognition for, and autonomy over one’s work, the federal judicial culture of elitism that has developed carries significant risks for democracy. By exalting the federal judiciary as elite and special, the ordinary litigant in the civil system loses out on Article III attention. Article III exceptionalism may also foster a judicial culture that eschews restraint, as judges issue bolder, bigger rulings thought worthy of a high-profile federal judiciary. Each day brings new signs of the costs of unbridled and self-important federal courts: a Supreme Court emboldened to cast aside precedent disfavored by a new majority; intermediate appellate courts dismantling the administrative state; and district courts overriding national public health policy. To combat these challenges, this Article argues for a rethinking of the role of federal courts to reinvigorate their public-service mission—a return, perhaps, to Article III ordinariness

Rebuilding the Federal Circuit Courts

The conversation about Supreme Court reform—as important as it is—has obscured another, equally important conversation: the need for lower federal court reform. The U.S. Courts of Appeals have not seen their ranks grow in over three decades. Even then, those additions were stopgap measures built on an appellate triage system that had outsourced much of its work to nonjudicial decision-makers (central judicial staff and law clerks). Those changes born of necessity have now become core features of the federal appellate system, which distributes judicial resources—including oral argument and judicial scrutiny—to a select few. This Article begins to reimagine the courts in a time of surplus, not scarcity, and it offers a comprehensive framework for identifying why, where, and how to add judges to the federal appellate courts. The existing distribution of judicial resources has created a problem: the courts have relied too much on procedural shortcuts that permit them to be highly selective in deciding which cases receive careful judicial attention. Ultimately, the distribution of appellate resources has been uneven across the country in ways that have a disparate impact on communities of color and poor communities. To redress these systemic deficits, this Article urges Congress to engage in lower court reform by adding judges to the most underresourced federal appellate courts. In so doing, it offers a framework for identifying underresourced courts that would ensure periodic and consistent congressional review of judicial needs. These measures consider indicia of overdelegation, population growth, and caseload demands—all while incentivizing courts not to overrely on procedural shortcuts in the first place

Downright Indifference : Examining Unpublished Decisions in the Federal Courts of Appeals

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.” The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate process in which judicial staff attorneys resolve appeals without oral argument or meaningful judicial oversight. For the system’s most vulnerable participants, the promise of an appeal as of right often becomes a rubber stamp: “You lose.” This work examines the product of that second-class appellate justice system by filling two critical gaps in the existing literature. First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume. Second, it examines the output of the second-tier appellate justice system from the perspective of the litigants themselves. Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions

Bottom-Rung Appeals

There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a similarly situated represented appellant in another circuit. Compounding that, in most federal circuits thousands of decisions issued annually in unrepresented appeals—especially those involving prisoners—are not available on free court websites, rendering them functionally unusable by those facing the greatest barriers to accessing justice in federal court.This Article both unearths these systemic inequities and calls for greater attention to their consequences. These disparities threaten dignitary harm to litigants, but they also risk a disparate impact on the development of the law. The courts and Congress, if need be, should realign the existing triage regime to prioritize procedural justice values alongside efficiency. At a minimum, this Article argues for transparency reforms to better assess the effect of the federal appellate triage regime on marginalized litigants. More controversially, it also argues that Congress should establish minimum and uniform standards for federal appellate decision-making