Federal District Court Judges and the Decision to Publish*

By Swenson, Karen | Justice System Journal, May 1, 2004 | Go to article overview

Federal District Court Judges and the Decision to Publish*


Swenson, Karen, Justice System Journal


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Federal District Court Judges and the Decision to Publish*
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.