“Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals

Merritt E. McAlister*

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 Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.”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The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants.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 First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume.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 Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions.

*Assistant Professor of Law, University of Florida Fredric G. Levin College of Law. For thoughtful discussions and generous feedback, I thank Jonathan Nash, Ron Krotoszynski, J.J. Prescott, Allan Erbsen, Rebecca Hollander-Blumoff, Tara Leigh Grove, Laura Rosenbury, Darren Hutchinson, Lea Johnston, Danny Sokol, Mark Fenster, Pamela Bookman, Andrew Hammond, Michael Wolf, Danaya Wright, Stephanie Bornstein, Peter Molk, Mae Quinn, and participants at the 2019 Michigan Law Junior Scholars Conference, the 2019 Junior Faculty Federal Courts Workshop, the 2019 University of Richmond Law School Junior Faculty Forum, the 2019 University of Florida Levin College of Law Summer Workshop Series, and the 2018 Southeastern Junior-Senior Scholars Workshop. I am grateful to the editors of the Michigan Law Review for exceptional care and thought during the editing process and to Kimbrell Hines for excellent research assistance. All errors are my own.

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