FEDERAL DISTRICT COURT JUDGES AND THE DECISION TO PUBLISH*

Justice System Journal, 2004 by Swenson, Karen

Federal district court judges decide to publish just one or two out of every ten opinions. This study tries to explain why judges publish opinions in some cases and not others. I test for the influence of the one legal constraint on publication, the official publication guidelines, and for the influences of several extra-legal factors. Federal district court judges seem likely to publish opinions that meet the official guidelines and that feature powerful, well-placed litigants and counsel, judges in circuits where the court of appeals publish heavily also do so. There is no evidence that appointing presidents' ideological preferences influence appointees' publication decisions, or that a win for an important actor is influential beyond the actor's presence itself.

The federal district court judge decides the outcome of a case; the judge settles a A dispute between parties. Then, like the Supreme Court, the judge often writes an opinion explaining the decision and setting forth legal rules. But that is not the last important decision the judge must make concerning the opinion; should this opinion be submitted for publication?

Selective publication is the rule in the federal district courts as it is in the circuit courts of appeals, where it has been studied at some length. The policy of encouraging limited publication was introduced in 1964 when the Judicial Conference of the United States addressed the burgeoning federal court caseload and its impact on publication, and noted that the increasing number of published opinions was straining the resources of public and private law libraries. The 1973 Advisory Council for Appellate Justice Report issued formal guidelines governing publication of district court opinions (as well as those of the circuit courts of appeal). An opinion should be published if it does any one of the following: 1) "lays down a new rule of law, or alters or modifies an existing rule"; 2) "involves a legal issue of continuing public interest," rather than "general public interest of a fleeting nature"; 3) "criticizes existing law," especially calling for change by a higher court or legislature; or 4) resolves a conflict of authority and "rationalizes apparent divergencies in the way an existing rule has been applied" (Martineau, 1994:124; see also West Publishing Company, 1994).

These formal rules governing publication are quite broad. The district court judge has wide discretion in deciding to publish an opinion, unmatched even by that of the circuit judge, who generally must gain the support of the majority participating in the decision.1

Opinions are published in printed volumes of the Federal Supplement (F.Supp.) and the Federal Rules of Decision (F.R.D.), both compiled by a private firm, West Publishing Company. All district court opinions appearing in the printed volumes, plus more, are included on West's computerized legal research database, Westlaw, and on LEXIS, a service provided by Reed Elsevier, Inc. Generally, West and LEXIS will publish any decision sent to them by a federal judge (Rowland and Carp, 1996; see also Siegelman and Donohue, 1990.) Federal district court judges release fewer than 20 percent of their written opinions for publication (findings of this study; see also Siegelman and Donohue, 1990).

How does the judge decide which decisions shall be published and which will remain essentially private? Analysis of the judge's decision process concerning publication provides a unique window into the motives of judges. Other decisions that judges make, decisions on the merits of cases and decisions on whether to grant discretionary review, have yielded considerable insight into motivations. Compared to these types of decisions, the district court judge's decision to publish is unconstrained by external rules, oversight, or pressure from colleagues. Studying the publication decision allows the researcher to tap pure judicial motives.

A better understanding of how district judges approach the publication decision will also assist in evaluating this practice of the lack of availability of much of the output of the federal district courts. There are sound reasons to be critical of this practice. Rowland and Carp (1996) argue that nonpublication of worthy district court decisions results in confusion and uncertainty to litigants due to inconsistencies between courts. Perhaps more importantly, nonpublication could foster wrongdoing by judges. Federal judges, who are appointed for life and can be removed from office only by impeachment, are not directly accountable. Public observation of their output helps keep them honest and ensures that they are carrying out their duties with quality and integrity. For example, recent media and interest group criticism of two of President Bush's nominations of conservative district court judges to circuit courts of appeals focused on these judges' unpublished dispositions. (See "The secret History of Judges," New York Times Editorial Desk, 2002; Groner, 2002; Alliance for Justice, 2002; People for the American Way, 2002.) Suspicions continue to arise despite the failure of scholarship to uncover irresponsible publication practices. Wasby's work on publication practices in the U.S. Courts of Appeals leads him to dismiss complaints that federal appellate judges deliberately "hide" opinions that are inconsistent with other circuit opinions or poorly reasoned. (2002a, b; 2001). Studies of state appellate courts also refute the notion that unpublished opinions in fact foster irresponsibility (Martineau, 1994).