Selective Publication in the U.S. Courts of Appeals: The Invisible Norm that Perpetuates Inequality

This book presents a comprehensive, first of its kind, examination of the theoretical and empirical implications of a key institutional practice in a highly influential set of courts. The U.S. Courts of Appeals both formulate legal policy and provide a forum for losing litigants to pursue an appeal. In order to keep up with an increasing number of appeals, yet still provide quality legal analysis, in the 1970s these courts adopted the practice of designating some decisions as unpublished and declaring that such rulings are not binding precedent. Scholars focused on policy and the lawmaking function of circuit courts understandably avoid the difficult task of grappling with the massive number of unpublished decisions. However, all dispositions impact the lives of those directly involved. And even more importantly, the distinction between published and unpublished rulings creates a breeding ground for disparities in power and privilege that raise serious concerns about social justice. The vast number and relative obscurity of unpublished decisions create substantial barriers to uncovering the nature and extent of the distributional consequences that flow from the selective publication norm. This book sheds light on these consequences by drawing on an original dataset of over two hundred thousand cases. Rigorous empirical examination reveals how the seemingly benign institutional feature of selective publication contributes to problematic differences in the way resources and demographic features shape power and privilege in the circuit courts. In short, selective publication plays a significant role in who gets what, when, and how.