Invisible Adjudication in the U.S. Court of Appeals

Document Type

Article

Publication Date

4-1-2018

Publication Title

Georgetown Law Journal

Volume

106

Issue

3

First page number:

683

Last page number:

720

Abstract

Nonprecedent decisions are the norm in federal appellate courts and are seen by judges as a practical necessity given the size of their dockets. Yet this system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many - and in a few circuits, most - decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. This Article reviews the reasons why nonpublication is a practical, constitutional, and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a rethinking of the way courts operate, the way practitioners advise clients, and the way scholars study the legal system. © 2018, Michael Kagan, Rebecca Gill, & Fatma Marouf.

Disciplines

Law

Language

English


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