Daily Archives: April 1, 2009

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

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From Journal of Empirical Legal Studies, Vol. 6, No. 1, March 2009, pp. 213-39

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

Denise M. Keele, Robert W. Malmsheimer, Donald W. Floyd, Lianjun Zhang


Almost without exception, scholars have tested theories of judicial behavior by relying on published case decisions. Though understandable given the inaccessibility of unpublished cases, this focus means that scholars may be drawing conclusions regarding judicial behavior that do not accurately describe the motivational forces behind all judicial decisions. This study employed the attitudinal model of judicial behavior to empirically test whether published judicial opinions are representative of all opinions in litigation challenging the U.S. Forest Service. Results indicate that the effects of ideological preferences are different in published and unpublished opinions issued by appellate judges: judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions. At the district court level, judges did not follow their ideological preferences in either published or unpublished opinions and there was no difference between judges’ decisions in published and unpublished opinions. This research supports the contention that the process of judicial decision making in the courts of appeals differs between published and unpublished opinions and that scholars should use caution in drawing conclusions from examinations of published opinions alone.

Court-System Transparency

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Here’s a new law review article of note:

Lynn M. LoPucki, “Court-System Transparency,” 94 Iowa Law Review 481-538 (February 2009).

ABSTRACT: Over the past decade, the federal courts became the world’s most transparent court system by switching from paper to electronic filing, resolving daunting privacy problems, and posting their case files on the Internet. Now they are embarking on a second, equally important transformation–the use of relational forms from which court data can be extracted automatically. This Article describes the technology and seeks to project and evaluate the effects of that second transformation.

If it occurs, the second transformation would create millions of windows into the courts at virtually no cost to the government. Policymakers, litigants, and the public would be able to see and understand the patterns of judicial decisionmaking–who wins what and how often. That would provide policy makers the feedback needed to fine tune the system, lawyers the ability to predict the outcomes of their cases, and the public the ability to see what courts actually do. All could also see whether the precautions they take for supposed legal reasons are the right ones.

Opponents argue that court-record transparency (1) would expose parties and witnesses to the risk of identity theft and other harms, (2) would invade privacy by making previously-difficult-to-obtain public-record information about individuals readily available, and (3) would pressure judges in ways that deprive them of judicial independence. This Article argues that none of those objections is well-founded.