Date01 March 2021
AuthorMcAlister, Merritt E.

INTRODUCTION 1102 I. ACCESS TO UNPUBLISHED FEDERAL APPELLATE DECISIONS 1108 A. What We Thought We Knew 1109 B. What We Now Know 1109 II. WHAT'S MISSING FROM LEGAL DATABASES 1120 A. The Data-Collection Process 1120 B. The Extent of What's Missing 1126 C. Observations About Missing Decisions 1132 1. The Likely Suspects 1172 2. The First Circuit Example 1135 III. WHY CARE? 1146 A. Meaningful Access to Precedent 1148 B. Missing Decisions as "systemic Facts" 1154 IV. THE SOLUTION 1158 CONCLUSION 1163 APPENDIX A 1164 APPENDIX B 1173 INTRODUCTION

This is the story of Jones v. Gelb. (1) Antonio Jones alleged that a corrections officer used pepper spray on him multiple times while Mr. Jones was already subdued; he was seated on the ground in full leg and arm restraints and had just undergone knee surgery. (2) The officer told Mr. Jones he wanted him to "die quick[ly]." (3) According to the U.S. Court of Appeals for the First Circuit, a video was consistent with Mr. Jones's description of the events but was not conclusive; on appeal, that court vacated the summary judgment decision granting the officer qualified immunity. (4) In ruling for Mr. Jones, the First Circuit cited law from other circuits to support its conclusion that a jury could decide the officer had acted maliciously and therefore was not entitled to immunity from trial. (5) Jones arguably makes new law--or at least clarifies existing law--in the First Circuit. (6)

And yet you will not find Jones on Westlaw, Lexis, or Bloomberg Law. (7) Jones is not an exception--at least not in that respect. (It is an exceptional result for a prisoner pursuing a civil rights claim. (8) ) For more than a decade, federal appellate courts have been screening--wittingly or not--thousands of decisions like Mr. Jones's case from the bench and bar. The decision in Mr. Jones's pro se appeal is just one example of what's missing.

There were nearly 10,000 federal appellate "merits terminations"-a term explained and defined in Part I (9)--issued during the same twelve-month period that, like Mr. Jones's, never made it to Westlaw, Lexis, or Bloomberg Law. (10) Out of approximately 34,000 such decisions issued during that period, approximately twenty-seven percent are missing from the most popular and powerful commercial legal databases. (11)

That time period is not an aberration. Access to merits terminations in federal appellate proceedings has been poor--or, at best, inconsistent--for at least the last decade. (12) Depending on the year, as many as forty percent of merits terminations from the federal appellate courts are missing from commercial databases. The First Circuit is not an outlier, either. Although the First Circuit's coverage gap is among the most substantial, during the same period the U.S. Courts of Appeals for the Third Circuit and the Sixth Circuit both had coverage gaps similar to that of the First Circuit. (13)

Concerns over coverage of federal court decisions on commercial databases are not new--and there is a rich literature on these issues, especially at the federal district-court level. (14) Christina L. Boyd, Pauline Kim, and Margo Schlanger's recent work reveals "vast variation in visibility" into district court work depending on the research tool used. (15) Elizabeth McCuskey's earlier work on access to district court decisions identified what she termed "submerged precedent" at the district-court level--"reasoned opinions available only on court dockets, and not on the Westlaw and Lexis commercial databases." (16) Building on McCuskey's work, Michael Kagan, Rebecca Gill, and Fatma Marouf challenged assumptions about access to federal appellate decisions in the immigration context. (17) They revealed that many--if not nearly all--decisions resolving immigration appeals were missing from Westlaw (and to a lesser extent, Lexis). (18)

But this Article is the first to show that the problem of access to circuit-level decisions is much bigger than anyone--including the commercial databases (19)--has realized. For at least a decade or more, scholars have thought (even while questioning district court access) that "[a]ll reasoned [federal] appellate opinions are open to public view." (20) Although the courts have relied increasingly on so-called "unpublished decisions" (21)--decisions not designated for inclusion in the West Federal Reporter--academics and practitioners alike have long assumed that unpublished decisions were widely available on free court websites and in commercial databases. (22)

The access problems we face for federal district court decisions also exist at the federal appellate level--albeit to a lesser extent. At no time over the last decade, have we had complete, navigable access to all reasoned or substantive decisions from the U.S. Courts of Appeals on Westlaw, Lexis, Bloomberg Law, or FDsys, the only government-run consolidated court opinions database.

What is missing, then? The short answer: decisions from the appellate courts that are not available for free on court websites. Commercial databases largely depend on the courts themselves for access to the opinions and orders that ultimately populate their databases. (23) If a decision is not on a free court website, it likely won't end up in a commercial database (unless requested for inclusion by a database customer). "Missing decisions" are available on the publicly accessible federal court docketing database, PACER, but they are not available for free. The commercial databases do not routinely incur PACER fees to retrieve content; whatever appellate work product is locked away behind PACER's paywall generally stays that way.

The courts denominate many merits terminations as "opinions of the court," a term of art that renders the decisions available for free through PACER, (24) but they issue other terminations--denominated (at least in the First Circuit) as "judgments"--that are not available for free. (25) How each panel resolves each appeal--whether by written opinion that will be widely available for free as an "opinion of the court" or by judgment locked away behind PACER's paywall--is a decision left to each panel. (26) At least some of these "judgments" (but certainly not all) are more substantive than the "judgment" label might suggest. (27)

The discovery of missing unpublished decisions undermines a core assumption about the study of the federal appellate courts--namely, that we can easily access and navigate all substantive work of the federal appellate courts using existing technology. It is not now, and likely never has been, true that we have usable and navigable access to all of the substantive work of the federal appellate courts. That's a concerning discovery for empiricists, who have been charged with overreliance on published federal appellate decisions for data and have warned of the pitfalls of failing to account for unpublished decisions. (28) Reliance on commercial databases for unpublished decisions likewise carries a risk of sampling bias.

For scholars of the federal courts, this Article describes a third tier of federal appellate decisions that has operated out of sight for well over a decade. We've long understood the federal appellate system to have two tracks or two tiers: a first for the most "important" federal appellate cases resolved with published opinions, and a lesser, second tier for common disputes ending in unpublished decisions. (29) But there may be an even lesser, third tier filled with hidden or missing unpublished decisions that never make their way to the commercial databases that scholars, practitioners, and courts use. (30) These decisions' relative invisibility renders them essentially useless to all but court insiders and the parties themselves--an access and use limitation that rule changes and technological shifts sought to ameliorate long ago.

For scholars concerned with access to justice, this discovery calls into question our ability to assess how the federal appellate courts administer justice. If only three-quarters of the work of the federal appellate courts has ever been truly visible to us, how can we assess the quality of process and the even-handedness of treatment that these courts have provided?

More problematic, still, is that what's missing from commercial databases appears to include disproportionately appeals from the most vulnerable litigants--including pro se litigants, criminal appellants, and noncitizens. Although the litigants themselves receive the decisions that the rest of us cannot find, the selective issuance scheme may change the shape and scope of available law. As the Jones case itself highlights, (31) some missing decisions may inform the contours of the duties imposed on defendant state actors--and yet bench, bar, and the actors themselves do not have ready access to those decisions for use in future cases. Missing decisions, therefore, may skew the law itself, depriving litigants of useful precedent and potentially shaping the contours of a state actor's constitutional duties. Not all missing decisions are as consequential as the tableau that begins this piece. But at least some are.

For practitioners and other legal researchers, this Article reveals that we've been lulled into a false sense of transparency and access to precedent by rule changes and legislation that seemingly ensured navigable access and the free use of unpublished decisions across the federal appellate courts. We have mistaken the federal system's lofty commitment to access with the reality on the ground.

The implications of this work extend well beyond the halls of academia. I call here on the courts to address this problem, and, in doing so, question the structure and transparency of basic court processes themselves. Courts have devolved decisions about access to individual judges or panels--or, perhaps, individual court clerks--who triage decisions and, in the process, effectively limit access to those decisions deemed...

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