A snapshot of briefs, opinions, and citations in federal appeals.To assist the federal courts in deciding whether to require the courts of appeals to accept citations to their unpublished opinions, the Federal Judicial Center The Federal Judicial Center (FJC) was created by Congress in 1967 (28 U.S.C.A. § 620) to enhance the growth of Judicial Administration in federal courts. It has become the judicial branch's agency for planning and policy research, systems development, and continuing education for assessed the frequency of citations to unpublished opinions in a sample of federal appeals. (1) This article grew out of that citation Citation (foaled 1945) U.S. Thoroughbred racehorse. In four seasons he won 32 of 45 races, finished second in ten, and third in two. He won the 1948 Triple Crown, and became the first horse to win $1 million. He set a world record in 1950 by running a mile in 1:33 3/5. study, because my colleagues and I noticed while collecting the necessary data that they contained information about a number of other interesting topics, all of which seemed to us to be of interest to the appellate Relating to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and other proceedings. community. We learned about case disposition times; the frequency with which both published and unpublished opinions are issued; the average length of counseled briefs and the frequency with which they are filed; the average length of both published and unpublished opinions; and the frequency with which various types of authorities are cited in both briefs and opinions. This article presents some of that additional information. I. THE SAMPLE We examined the case files of a random sample of fifty cases in each of the thirteen federal courts of appeals selected from among all cases filed in 2002. (2) Because the data were collected for a study of citation practices, we examined counseled briefs filed in each of these cases. (3) We did not examine pro se briefs, because although citation rules apply to pro se litigants, citation behavior by lawyers would be much more relevant to the development of court rules. (4) We did not examine memoranda supporting motions, because these are often short documents with few citations. (5) This article presents data for circuits individually and estimates for all courts of appeals together. In computing computing - computer nationwide estimates, I weight more heavily the data for courts with more cases. (6) For example, because twenty percent of the cases filed in federal courts of appeals in 2002 were filed in the Ninth Circuit, I weight its data twenty percent in computing averages, while weighting data for the D.C. Circuit two percent, because only two percent of the cases filed in 2002 were filed there. II. FILING BRIEFS AND PUBLISHING OPINIONS Most appeals are resolved without counseled briefs. In our sample, only cases with counseled briefs were resolved by published opinions. Cases with counseled briefs filed on both sides were more likely to be resolved by published opinions than were cases with counseled briefs filed on one side only. Our data suggest that approximately thirty-nine percent of cases with counseled briefs on both sides are resolved by published opinions. We found counseled briefs filed in forty-one percent of the cases in our sample. (7) Taking into account the number of cases filed in each court, this suggests that approximately thirty-nine percent of the cases filed in 2002 had counseled briefs filed. As Table 1 demonstrates, the percentage of cases with counseled briefs ranged from twenty-two percent in the Fourth Circuit to fifty-four percent in the Eighth Circuit. (8) Not all cases with counseled briefs had counseled briefs filed on both sides. Pro se cases accounted for approximately three-quarters of the cases with counseled briefs on one side only. (9) Some cases were dismissed before appellee A party who has won a judgment in a lawsuit or favorable findings in an administrative proceeding, which judgment or findings the losing party, the appellant, seeks to have a higher court reverse or set aside. briefs were filed, either because of settlement or resolution on motion. (10) The data shown in Table 1 indicate that from a large minority to a substantial majority of cases filed in each court had no counseled briefs filed. But as figure 3 demonstrates, nearly one-third of these cases are denials of pro se applications for certificates of appealability or for successive habeas corpus habeas corpus (hā`bēəs kôr`pəs) [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a petitions. Almost another third of these cases were dismissed as improper
[FIGURE 3 OMITTED] The percentage of cases with counseled briefs on both sides cases we designated as "fully briefed"--ranged from twelve percent in the Fourth Circuit to forty percent in the Third and the Eighth Circuits. From these data, we estimate an average of twenty-seven percent in all circuits combined. (12) In our sample of cases, ninety-nine percent were resolved during the study period. (13) Of these, fourteen percent were resolved by published opinions, thirty-one percent were resolved by unpublished opinions, and fifty-five percent were resolved without opinions. (14) If we take into account the number of cases filed in each circuit, this implies that among all cases an estimated ten percent were resolved by published opinions, approximately thirty-one percent were resolved by unpublished opinions, and about fifty-nine percent were resolved without opinions. (15) From our sample of case files we can estimate how many counseled briefs were filed in 2002 cases, but to do that we have to take into account consolidations. It is not uncommon for both sides of a case concluded in the trial court to file an appeal, with one of the filings designated the appeal and given one case number, and the other filing designated a cross-appeal and given another case number. The appeal and cross-appeal usually are consolidated, with one set of briefs filed to cover both cases. If we want to estimate from our sample the average number of briefs per case, then we should count each brief filed in a two-case consolidation as half a brief. Similar principles would apply to more complicated consolidations. For example, if three losing defendants each filed an appeal and the three appeals were consolidated, and if each appellant A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an Administrative Agency, asks a superior court to review the decision. filed a separate brief, but the appellee filed one brief to cover all three appeals, then each appellant brief would count as one brief, but the appellee brief would count as one-third of a brief. Our data suggest that in 2002, an average of 0.80 counseled briefs per case were filed in federal appeals, ranging from an average of 0.31 briefs per case in the Fourth Circuit to an average of 1.28 briefs per case in the Eighth Circuit. (16) We determined that fully briefed cases are much more likely to be resolved by published opinions than are cases with counseled briefs filed on only one side. And we also observed that no case without any counseled brief filed was resolved by a published opinion in our sample. Among cases without any counseled brief filed, all were resolved without opinion in five circuits--the Second, Seventh, Eighth, Ninth, and Eleventh In music or music theory an eleventh is the note eleven scale degrees from the root of a chord and also the interval between the root and the eleventh. Since there are only seven degrees in a diatonic scale the eleventh degree is the same as the subdominant and the interval Circuits. (17) The percentage of cases without counseled briefs that were resolved without opinion in the other circuits ranged from forty-six percent in the Fourth Circuit to ninety-six percent in the First and Third Circuits. Our data suggest that overall, eighty-nine percent of cases filed in 2002 without counseled briefs were resolved without opinions, and eleven percent were resolved with unpublished opinions. The Fourth Circuit issued the highest percentage of opinions in cases without counseled briefs--fifty-four percent. Of the thirty-nine Fourth Circuit cases in our sample without counseled briefs, the court resolved twenty-one with opinions. Approximately half of these opinions--ten deny certificates of appealability. Other circuits generally deny certificates of appealability without opinion, but the Fourth Circuit appears to deny them with form unpublished opinions. (18) Cases with counseled briefs filed on one side only--"partially briefed" cases--were resolved mostly by unpublished opinions. Our data suggest that overall eighty-one percent of the cases filed in 2002 with counseled briefs on one side only were resolved with unpublished opinions, ranging from just fourteen percent in the First Circuit to one hundred percent in the courts of appeals for the Eighth, Ninth, Tenth, and D.C. Circuits. (19) Our data suggest that overall seventeen percent were resolved without opinions, and two percent were resolved with published opinions. There were only three partially briefed cases in our sample resolved by published opinions. (20) Our data--reported in Table 5--suggest that a bare majority of fully briefed cases filed in 2002 were resolved by unpublished opinions and that over a third were resolved by published opinions. In six circuits (the First, Second, Seventh, Eighth, Tenth, and D.C. Circuits), however, most fully briefed cases were resolved by published opinions. The court resolving the largest percentage of fully briefed cases without opinion was the Federal Circuit, which resolved seven (or fifty-eight percent) of its twelve fully briefed cases without opinion. Two of these cases were voluntarily dismissed, and one was dismissed as moot An issue presenting no real controversy. Moot refers to a subject for academic argument. It is an abstract question that does not arise from existing facts or rights. . The other four were unsuccessful appeals resolved by per curiam [Latin, By the court.] A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge. Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement judgments without opinion. (21) The First Circuit resolved five (or thirty-one percent) of its sixteen fully briefed cases without opinion. But this court often explains its holdings without opinion in textually tex·tu·al adj. Of, relating to, or conforming to a text. tex  tu·al·ly adv. rich docket entries.
(22)
III. VOLUME PER JUDGESHIP It is clear that not all cases require the same amount of work by the court. A case without briefs that is resolved without opinion will generally require considerably less work than a fully briefed case resolved by a published opinion. And not all briefs and opinions require the same amount of work. A 10,000-word brief will generally require substantially more time to read and review than a 1,000-word brief. We computed the length of all of the briefs and opinions filed in our sample of cases. These computations were somewhat crude, because although some documents were available electronically, some had to be scanned and passed through character-recognition software. Such software often results in errors, but the data appear to be sufficiently accurate for general conclusions. Our data suggest that there were 340 cases filed per court of appeals judgeship in 2002. (23) This ranged from ninety-two cases per judgeship in the D.C. Circuit to 614 cases per judgeship in the Eleventh Circuit. There was fairly close agreement between cases per judgeship and counseled briefs per judgeship, keeping in mind that there was an average of 0.80 counseled briefs filed per case. The Fourth Circuit had noticeably fewer briefs per judgeship than other courts compared with its number of cases per judgeship, and the Eighth Circuit had noticeably more briefs per judgeship than other courts compared with its number of cases per judgeship. Summing the words in the counseled briefs and the published and unpublished opinions, the data suggest an average of 5,012 words per case and 1.7 million words per judgeship in 2002. The data for individual circuits ranged from an estimated 0.6 million words per judgeship in the Fourth Circuit to an estimated 2.9 million words per judgeship in the Eleventh Circuit. IV. CITATIONS TO AUTHORITY Citations to published opinions greatly outnumber out·num·ber tr.v. out·num·bered, out·num·ber·ing, out·num·bers To exceed the number of; be more numerous than. outnumber Verb to exceed in number: citations to unpublished opinions or secondary sources. We counted all citations to opinions and certain other authorities in all of the counseled briefs and opinions in our sample of cases. (24) We did not count citations to statutory and similar authorities, because they are difficult to enumerate To count or list one by one. For example, an enumerated data type defines a list of all possible values for a variable, and no other value can then be placed into it. See device enumeration and ENUM. . (25) For example, should two sections of the same statute count as one or two citations? (26) How about two paragraphs of the same section? How about a citation to a statute that includes twelve sections? Among citations to non-statutory authorities, an estimated ninety percent were to published court opinions, ranging from eighty-one percent in the D.C. Circuit to ninety-nine percent in the Fifth Circuit. (27) An estimated one percent were citations to unpublished court opinions, ranging from 0.4% in the D.C. Circuit to five percent in the Sixth Circuit. An estimated six percent of citations to non-statutory authorities were citations to agency or arbitrator arbitrator n. one who conducts an arbitration, and serves as a judge who conducts a "mini-trial," somewhat less formally than a court trial. In most cases the arbitraror is an attorney, either alone or as part of a panel. decisions, which are represented in Table 6 as "other opinions," ranging from a low of zero in the Fifth Circuit to a high of fourteen percent in the D.C. Circuit. The remaining estimated three percent of citations to non-statutory authorities were to "other authorities," which include restatements, treatises, law review articles, dictionaries, and the like. (28) A. Published Court Opinions We observed 16,789 citations to published court opinions in the opinions and counseled briefs in our sample of cases. As can be seen in Figure 5, approximately one quarter of these were citations to Supreme Court opinions, nearly half were citations to published opinions by the court hearing the case, and approximately one-fifth were citations to other federal courts of appeals. An estimated seven percent were citations to published opinions by other federal courts, including district courts, (29) and an estimated six percent were citations to published opinions by state courts. (30) The pattern is very similar in all circuits, although citations to state court opinions are noticeably most frequent in Fifth Circuit cases. [FIGURE 5 OMITTED] We observed twenty-three citations to opinions by foreign courts. These occurred in three cases in two circuits. In a case before the D.C. Circuit, (31) initially an unsuccessful appeal of the district court's judgment that federal courts do not have jurisdiction over alien prisoners held at the Guantanamo Bay Naval Base “Gitmo” redirects here. For other uses, see Gitmo (disambiguation). For other titular locales, see . Guantánamo Bay Naval Base at the southeastern end of Cuba has been used by the United States Navy for more than a century, and is the oldest overseas U.S. in Cuba, but subsequently remanded to the district court after reversal by the Supreme Court, (32) the appellant cited five foreign court opinions, (33) and amici Amici can refer to:
The two other cases were in the Second Circuit, where the government cited an opinion by Great Britain's privy council Privy Council Historically, the British sovereign's private council. Once powerful, the Privy Council has long ceased to be an active body, having lost most of its judicial and political functions since the middle of the 17th century. in an immigration immigration, entrance of a person (an alien) into a new country for the purpose of establishing permanent residence. Motives for immigration, like those for migration generally, are often economic, although religious or political factors may be very important. appeal (36) and the appellant cited an opinion by the court of appeal for England and Wales England and Wales are both constituent countries of the United Kingdom, that together share a single legal system: English law. Legislatively, England and Wales are treated as a single unit (see State (law)) for the conflict of laws. in an arbitration appeal. (37) B. Unpublished Court Opinions We observed 247 citations to unpublished court opinions; 229 of these citations were in briefs and eighteen were in opinions. The citations to unpublished opinions by the courts occurred in thirteen cases in six circuits--in eight published opinions and five unpublished opinions. A third of the citations to unpublished opinions were in Tenth Circuit cases. In the Tenth Circuit, as in most circuits, unpublished opinions are not binding precedents In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. in unrelated cases, and their citation was disfavored at the time of this study. (38) But in an unpublished opinion, the court cited one of its unpublished opinions as a precedent. (39) In another published opinion, (40) the court cited both one of its own unpublished opinions (41) and an unpublished opinion by the Ninth Circuit. (42) This is ironic, because the Ninth Circuit's rules do not permit parties or the court itself to cite its unpublished opinions in unrelated cases. (43) In another published opinion, (44) the court cited one of its own unpublished opinions and an unpublished opinion by the Third Circuit, (45) even though that circuit permits parties, but not the court itself, to cite its unpublished opinions. (46) In a high-profile case concerning application of the Religious Freedom Restoration Act The Religious Freedom Restoration Act (, also known as RFRA) is a 1993 United States federal law aimed at preventing laws which substantially burden a person's free exercise of their religion. to prosecutions for religious use of a hallucinogenic hal·lu·ci·no·gen n. A substance that induces hallucination. [hallucin(ation) + -gen.] hal·lu tea-like mixture called hoasca, ultimately affirmed af·firm v. af·firmed, af·firm·ing, af·firms v.tr. 1. To declare positively or firmly; maintain to be true. 2. To support or uphold the validity of; confirm. v.intr. by the Supreme Court, (47) the Tenth Circuit issued three published opinions. First, the court stayed the district court's preliminary injunction A temporary order made by a court at the request of one party that prevents the other party from pursuing a particular course of conduct until the conclusion of a trial on the merits. A preliminary injunction is regarded as extraordinary relief. against hoasca prosecutions pending resolution of an appeal, (48) then the court affirmed the injunction in a panel decision, (49) and then in an en banc [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are decision. (50) Both the stay opinion and some of the opinions concurring con·cur intr.v. con·curred, con·cur·ring, con·curs 1. To be of the same opinion; agree: concurred on the issue of preventing crime. See Synonyms at assent. 2. in part and dissenting dis·sent intr.v. dis·sent·ed, dis·sent·ing, dis·sents 1. To differ in opinion or feeling; disagree. 2. To withhold assent or approval. n. 1. in part with respect to the en banc opinion cite an unpublished opinion by the Eighth Circuit upholding application of the Controlled Substances Act Controlled Substances Act /Con·trolled Sub·stan·ces Act/ a federal law that regulates the prescribing and dispensing of psychoactive drugs, including narcotics, hallucinogens, depressants, and stimulants. to arguably ar·gu·a·ble adj. 1. Open to argument: an arguable question, still unresolved. 2. That can be argued plausibly; defensible in argument: three arguable points of law. religious uses of marijuana marijuana or marihuana, drug obtained from the flowering tops, stems, and leaves of the hemp plant, Cannabis sativa (see hemp) or C. indica; the latter species can withstand colder climates. . (51) The only other court to cite in our sample its own unpublished opinions in unrelated cases was the Sixth Circuit, which ostensibly os·ten·si·ble adj. Represented or appearing as such; ostensive: His ostensible purpose was charity, but his real goal was popularity. disfavored citation to its unpublished opinions. (52) Three of the court's opinions in our sample--one published and two unpublished--cited an unpublished opinion by the court. (53) In another unpublished opinion, the court cited an unpublished district court opinion. (54) The other citations to unpublished opinions in our sample were citations to opinions by other courts. In an unpublished opinion, the First Circuit distinguished two unpublished Eleventh Circuit opinions that the appellant apparently cited in his pro se brief. (55) And the Third Circuit cited unpublished district court opinions in two of its published opinions. (56) In a published opinion, the Seventh Circuit cited a depublished opinion by a district court in another circuit. (57) The appellant relied heavily on the depublished opinion and also cited the district court's published opinion, while the Seventh Circuit cited both opinions to answer the appellant's argument. The remaining citation by a court of appeals to an unpublished opinion was a citation in a published opinion by the D.C. Circuit to an unpublished consent decree A settlement of a lawsuit or criminal case in which a person or company agrees to take specific actions without admitting fault or guilt for the situation that led to the lawsuit. A consent decree is a settlement that is contained in a court order. entered in an EPA EPA eicosapentaenoic acid. EPA abbr. eicosapentaenoic acid EPA, n.pr See acid, eicosapentaenoic. EPA, n. case by the United States District Court for the District of Columbia The United States District Court for the District of Columbia is the United States District Court that hears cases originating in the District of Columbia over which federal courts have original jurisdiction. . (58) The Second, Seventh, Ninth, and Federal Circuits forbade for·bade v. A past tense of forbid. forbade or forbad Verb the past tense of forbid forbade forbid citation to their unpublished opinions in unrelated cases during the time of this study. (59) In our sample of cases before the Seventh Circuit, we did not find any citations to unpublished opinions. (60) But in the other three courts, we found citations to unpublished opinions issued by the forum court. In the cases we examined in the Ninth and Federal Circuits, citations in briefs to the court's unpublished opinions may be regarded as innocent, merely informational, violations of the courts' proscriptions against the practice. In one case before the Ninth Circuit, an immigration petitioner cited a depublished Ninth Circuit opinion and a published opinion that superseded it, and it may be that only citation to the superseding superseding taking over a case of a patient under treatment by another veterinarian. In general terms this is poor professional etiquette unless the other veterinarian has been consulted and agrees to the change. opinion was intended as authority. (61) In a Ninth Circuit sentencing appeal, the government noted that a cited published opinion by the court was amended on denial of rehearing rehearing n. conducting a hearing again based on the motion of one of the parties to a lawsuit, petition or criminal prosecution, usually by the court or agency which originally heard the matter. by both a published opinion concerning the sentence and an unpublished opinion concerning the conviction. (62) And in an appeal in the Federal Circuit, the government cited an unpublished opinion by the court to point out that the pro se petitioner should not have cited it. (63) We observed four citations to the Second Circuit's unpublished opinions in three Second Circuit appeals, and these citations appear to violate the court's rule proscribing them. (64) The Fifth Circuit permits citations to its unpublished opinions, (65) but we did not observe any in our sample of cases. (66) In fact, we observed only four citations to unpublished court opinions of any kind among the Fifth Circuit cases in our study. (67) Overall, approximately one quarter of citations to unpublished court opinions were citations to federal appellate opinions, half of these issued by the court hearing the case and half issued by another circuit. C. Other Authorities One of the ironies often articulated to support a rule requiring courts to accept citations to their unpublished opinions was well expressed in the Daily Journal: "Lawyers may cite sonnets by Shakespeare or scenes from Spielberg for their persuasive value, but they can't cite unpublished decisions by the very appellate courts A court having jurisdiction to review decisions of a trial-level or other lower court. An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. they wish to persuade." (68) We did not actually observe any citations to Shakespeare or Spielberg, but we did observe citations to Scott, Fleming, and Scorsese. Chief Judge Douglas Ginsburg of the D.C. Circuit offered a charming musing on remedies: "'O what a tangled tan·gled adj. Complicated and difficult to unravel. See Synonyms at complex. Adj. 1. tangled - in a confused mass; "pushed back her tangled hair"; "the tangled ropes" untangled - not tangled 2. web we weave, when first we practice to ...' relieve. With apology apology [Gr.,=defense], literary work that defends, justifies, or clarifies an author's ideas or point of view. Unlike the ordinary use of the word, the literary use neither implies that wrong has been done nor expresses regret. to Sir Walter Scott, Marmion, Canto can·to n. pl. can·tos One of the principal divisions of a long poem. [Italian, from Latin cantus, song; see canticle. vi, Stanza stan·za n. One of the divisions of a poem, composed of two or more lines usually characterized by a common pattern of meter, rhyme, and number of lines. [Italian; see stance. 17 (1808)." (69) Judge Michael McConnell Mike or Michael McConnell is the name of:
reaches and departs from Oz in circus balloon. [Children’s Lit.: The Wonderful Wizard of Oz] See : Ballooning Wizard of Oz false wizard takes up residence in Emerald City. [Am. Lit. : It's not only merely moot, it's really most sincerely moot." (70) Judge McConnell also mentioned The Last Temptation of Christ The temptation of Christ in Christianity, refers to the temptation of Jesus by the devil as detailed in each of the Synoptic Gospels, at Matthew 4:1-11, Mark 1:12-13, and Luke 4:1-13. , but only because it was involved in a cited case. (71) Table 7 shows our count of citations to authorities that were not constitutions, statutes, rules, or opinions. Citations to these "other authorities"--most of which were either treatises or articles, but approximately ten percent of which were dictionaries, and somewhat fewer of which were Restatements--outnumbered citations to unpublished court opinions 412 to 247. Table 8 shows that among citations to Restatements, nearly half were citations to the Restatement Restatement A revision in a company's earlier financial statements. Notes: The need for restating financial figures can result from fraud, misrepresentation, or a simple clerical error. (Second) of Torts torts in law a wrong other than a criminal wrong, e.g. defamation, negligence. . If we add the single citation to the Restatement (First) of Torts and the single citation to the Restatement (Third) of Torts, we get a bare majority of Restatement citations. The second most common Restatement citation was to the Restatement (Second) of Contracts, with four citations, and we observed citations to seven other Restatements. I was particularly eager to review the statistical information about dictionaries, because I have long been a fan of The American Heritage American Heritage can refer to:
V. DISPOSITION TIME The federal courts of appeals resolve more than half of their cases within seven months and nearly three-quarters of them within one year. Slightly more than one-twentieth of their cases appear to remain unresolved Not completed; not finished; not linked together. See resolve. after two years. We were able to compute To perform mathematical operations or general computer processing. For an explanation of "The 3 C's," or how the computer processes data, see computer. disposition times for the 644 cases that were resolved during our study period in our sample of 650 cases filed in 2002. I also examined a sample of cases filed in 2003 to test the reliability of our disposition estimates. (74) All but eighteen of the 2003 cases were resolved during our study period, so I could compute disposition times for 632 cases filed in 2003. These disposition data suggest that the courts of appeals resolved approximately seventy-four percent of the cases filed in 2002 and 2003 within one year of filing, with their totals ranging from fifty-three percent in the Second Circuit to ninety-two percent in the Fourth Circuit, and that the courts resolved approximately ninety-four percent of the cases within two years of filing, their two-year resolution rates ranging from seventy-seven percent in the Second Circuit to one hundred percent in the Eighth and Eleventh Circuits. The data suggest a median disposition time of 208 days, ranging from 118 days in the Fourth Circuit to 318 days in the Second Circuit. And our plot of cumulative disposition times, shown in Figure 7, conveys additional information. Each point on the plot represents how many cases (y) have been resolved within how many days (x). The point at which a line connecting the points crosses 365 days shows how many cases have been resolved within one year. The line shows the median disposition time where it crosses the indicator for fifty cases, because the combined sample for each circuit is 100 cases. [FIGURE 7 OMITTED] The farther to the left a particular circuit's cumulative disposition line, the more quickly that circuit resolves its cases. The Fourth Circuit appears to resolve its cases most quickly, although by only a very few days compared with the Eleventh Circuit. The Eighth Circuit, however, was the court that resolved all of the cases in our combined sample most quickly. The Ninth Circuit, which gets a lot of attention because of efforts to split the circuit, appears to be relatively close to the average in the rate at which it resolves its cases, while the Second Circuit appears to resolve its cases most slowly, perhaps because its caseload case·load n. The number of cases handled in a given period, as by an attorney or by a clinic or social services agency. caseload Noun includes a large number of immigration cases. Six of its nine unresolved cases and eleven of the thirteen other cases it took more than two years to resolve are reviews of decisions by the Board of Immigration Appeals The Board of Immigration Appeals ("BIA") is the part of the Executive Office for Immigration Review that reviews the decisions of the Immigration Courts and some decisions of the U.S. Citizenship and Immigration Services. . (75) VI. CONCLUSION Our data show, then, that the federal courts of appeals resolve a large fraction of their fully briefed cases by published opinions, and the courts in some circuits resolve most of their fully briefed cases by published opinions. Just considering opinions and counseled briefs, the courts are processing 1.7 million words per judgeship per year and resolving approximately ninety-four percent of their cases within two years of filing. Our data also show that citations to published opinions far outnumber citations to other non-statutory authorities in briefs and opinions. Parties and courts cite secondary sources only occasionally, and unpublished opinions somewhat less often. Some citations to unpublished opinions appear to violate the courts' proscriptions against such citations. I hope that these data and statistics culled from a random sample of federal appeals will help judges and lawyers better understand the work of the federal appellate courts. (1.) This article presents data collected for a project conducted for the federal Appellate Rules Advisory Committee, resulting in a published report: Robert Timothy Reagan et al., Citing Unpublished Opinions in Federal Appeals (Fed. Jud. Ctr. 2005) [hereinafter here·in·af·ter adv. In a following part of this document, statement, or book. hereinafter Adverb Formal or law from this point on in this document, matter, or case Adv. 1. FJC FJC Federal Judicial Center (US) FJC Federation of Jewish Communities FJC Family Justice Center FJC Freely Jointed Chain FJC First Jump Course (skydiving/BASE) FJC The Foundation for Jewish Camping Study]. New Federal Rule of Appellate Procedure 32.1 requires federal courts of appeals to accept citations to their unpublished opinions issued in 2007 or later, but it is not intended to affect the precedential prec·e·den·tial adj. 1. Of, relating to, or constituting a precedent. 2. Having precedence. Adj. 1. precedential effect of the opinions. I am grateful to my colleagues Meghan Dunn, David Guth, Scan Harding, Andrea Henson-Armstrong, Laural Hooper hoop·er n. A maker or repairer of barrels and tubs; a cooper. , Marie Leary, Jennifer Marsh, and Robert Niemic for their assistance in collecting these data. We are grateful to Justice Samuel Alito Samuel Anthony Alito, Jr. (born April 1, 1950) is an Associate Justice of the Supreme Court of the United States. Educated at Princeton University and Yale Law School, Alito served as a United States attorney and a judge on the United States Court of Appeals for the Third Circuit , who as a judge on the Third Circuit was chair of the Appellate Rules Advisory Committee when we conducted this research; to incoming dean David Levi David Levi may refer to:
(2.) FJC Study, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. n. 1, at 22. (3.) Id. at 26. (4.) See id. (5.) See id. (6.) Figure 1 provides the number of filings in 2002 for each of the federal courts of appeals. (All figures and tables referenced this article can be found in Appendices ap·pen·di·ces n. A plural of appendix. A and B, which follow the text.) (7.) FJC Study, supra n. 1, at 26. (8.) Id. at 26 & n. 48. (9.) See Figure 2. (10.) We observed two cases with counseled briefs filed on one side only for other reasons. In one, the appellant filed a counseled application for a certificate of appealability, which was denied. (It is much more common for such applications to be filed pro se.) The other case was part of a complex consolidation including a successful appeal of the denial of qualified immunity Qualified immunity is a doctrine in United States law providing immunity from suit to government officials performing discretionary functions when their action did not violate clearly established law. Qualified immunity was created by the U.S. . One plaintiff decided not to respond to the defendant's brief as appellant because a motion to dismiss for lack of jurisdiction was pending. (11.) We observed twenty-two cases in which there were other reasons why no counseled brief was filed. Five cases were transferred before briefing, five were dismissed or remanded summarily because of new law, three were in abeyance A lapse in succession during which there is no person in whom title is vested. In the law of estates, the condition of a freehold when there is no person in whom it is vested. In such cases the freehold has been said to be in nubibus (in the clouds), in pendenti and might still have been briefed, two were immigration appeals resolved on motion, one was remanded on a joint motion, and one was dismissed for administrative error. Another case was a pro se appeal in which the court vacated the district court's dismissal of the complaint for the limited purpose of permitting the plaintiff to properly identify the defendants. The remaining case was part of a complex consolidation: The selected appeal concerned an award of attorney fees; the main appeal was unsuccessful, and the attorney fee issue was not briefed. (12.) See Table 1. (13.) Of the 650 cases in our sample, 644 were resolved. FJC Study, supra n. 1, at 22. The unresolved cases include two in the D.C. Circuit and one each in the Second, Third, Ninth, and Tenth Circuits. Id. at 22, n. 37. (14.) See id. at 23, 25 (reporting percentages of all 650 cases instead of percentages of the 644 resolved cases). (15.) See Table 2. (16.) FJC Study, supra n. 1, at 26 n. 48; see also Table 1. (17.) See Table 3. (18.) See e.g. Jenkins v. Bell, 30 Fed. Appx. 115 (4th Cir. 2002) (denying certificate and dismissing appeal "on the reasoning of the district court") (19.) See Table 4. (20.) Santana v. Calderon, 342 F.3d 18 (1st Cir. 2003) (successful appeal of the denial of qualified immunity in a complex consolidation in which the plaintiff elected not to brief the selected appeal because a motion to dismiss for lack of jurisdiction was pending); Miniat v. Ed Miniat, Inc., 315 F.3d 712 (7th Cir. 2002) (unsuccessful civil appeal in a corporate governance Corporate Governance The relationship between all the stakeholders in a company. This includes the shareholders, directors, and management of a company, as defined by the corporate charter, bylaws, formal policy, and rule of law. case, in which the plaintiff-appellant, an attorney, appeared pro se); Campion campion: see pink. campion Any of the ornamental rock-garden or border plants that make up the genus Silene, of the pink family, consisting of about 500 species of herbaceous plants found throughout the world. v. Merit Sys. Protection Bd., 326 F.3d 1210 (Fed. Cir. 2003) (unsuccessful pro se appeal of a decision by the Merit Systems Protection Board The Merit Systems Protection Board (MSPB) ensures that federal civil servants are hired and retained based on merit. In overseeing the personnel practices of the federal government, the board conducts special studies of the merit systems; hears and decides charges of wrongdoing and that it did not have jurisdiction over the case because the petitioner was not a preference-eligible veteran). (21.) See e.g. Watts v. XL Systems, Inc., 56 Fed. Appx. 922, 2003 WL 932439 (Fed. Cir. 2003) ("This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36."). The rule cited in Watts provides that [t]he court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value: (a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous; (b) the evidence supporting the jury's verdict is sufficient; (c) the record supports summary judgment, directed verdict, or judgment on the pleadings; (d) the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or (e) a judgment or decision has been entered without an error of law. Fed. Cir. R. 36. (22.) See e.g. U.S. v. Santiago, No. 02-1610 (1st Cir. Mar. 6, 2003). This is the docket sheet entry resolving the case: JUDGMENT filed Judge Selya, Judge Stahl, and Judge Lynch closing case. Challenges the sufficiency of the evidence to support his conviction for unlawful possession of ammunition. 18 U.S.C. [section] 922(g)(1). We review sufficiency of the evidence claims viewing the evidence "in the light most amiable to the government and taking all reasonable inferences in its favor." United States v. Moran, 312 F. 3d 480, 487 (1st Cir. 2002). The transcript of the trial shows, however, that there was evidence, which a rational jury could credit, that appellant admitted possession of the ammunition to the agents searching his apartment pursuant to a warrant and then shortly thereafter contradicted himself, denying ever having seen it before. The jury was entitled to consider, in addition to the testimony that appellant made inculpatory statements, the circumstantial evidence of constructive possession, for example, the fact that the ammunition was kept in a closet which held appellant's possessions. Cf. United States v. Echeverri, 982 F. 2d 675 (1st Cir. 1993); United States v. Ortiz, 966 F.2d 707 (1st Cir. 1992). The judgment of conviction is affirmed. 1st Cir. R. 27(c). (23.) See Figure 4. (24.) FJC Study, supra n. 1, at 26. This included 213 appellant briefs, 260 appellee briefs, 145 reply briefs, 15 amicus curiae amicus curiae (Latin: “friend of the court”) One who assists a court by furnishing information or advice regarding questions of law or fact. A person (or other entity, such as a state government) who is not a party to a particular lawsuit but nevertheless has a and intervenor briefs, and 296 opinions. (25.) Id. (26.) Id. at 26 n. 49. (27.) See Table 6. (28.) These data do not include citations to opinions in related cases, such as an opinion in the case reviewed, or an opinion in an earlier phase of the case; briefs in other cases; or unreported judgments. (29.) In addition to published opinions by district courts, we observed citations to published opinions by bankruptcy courts bankruptcy court n. the specialized Federal court in which bankruptcy matters under the Federal Bankruptcy Act are conducted. There are several bankruptcy courts in each state, and each one's territory covers several counties. , the Tax Court, the Court of Federal Claims, the Court of Appeals for Veterans Claims, the Court of Military Appeals, the Court of Military Justice, and the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. Court of Berlin. (30.) The pattern is very much the same for citations in briefs and citations in opinions. (31.) Habib v. Bush (D.C. Cir. 02-5284, filed Sept. 11, 2002, judgment July 19, 2004), initially resolved by Al Odah v. U.S., 321 F.3d 1134 (D.C. Cir. 2003), rev'd, sub nom. Rasul v. Bush Rasul v. Bush, 542 U.S. 466 (2004), is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. , 542 U.S. 466 (2004). (32.) Rasul v. Bush, 542 U.S. 466 (2004). (33.) The appellant cited three opinions by the European Court of Human Rights European Court of Human Rights: see Council of Europe. , one opinion by the International Court of Justice, and one opinion by the Organization of American States' Inter-American Commission on Human Rights The Inter-American Commission on Human Rights (the IACHR or, in the three other official languages – Spanish, French, and Portuguese – CIDH) is an autonomous organ of the Organization of American States (OAS). . (34.) Human rights organizations and legal scholars cited two nineteenth century opinions by English courts (one by the court of common pleas COURT OF COMMON PLEAS. The name of an English court which was established on the breaking up of the aula regis, for the determination of pleas merely civil. It was at first ambulatory, but was afterwards located. and one by the admiralty court Admiralty courts, also known as maritime courts, are courts exercising jurisdiction over all maritime contracts, torts, injuries and offences. Admiralty Courts in Wales and England Today Admiralty jurisdiction is exercised by the High Court of England and Wales. ), six opinions by the European Court of Human Rights, four opinions by the United Nations Human Rights Committee, one opinion by the United Nations Working Group on Arbitrary Detention The Working Group on Arbitrary Detention is a UN-mandated body of independent human rights experts that investigates cases of arbitrary arrest and detention that may be in violation of international human rights law. , two opinions by the Organization of American States's Inter-American Commission on Human Rights, and one opinion by the International Court of Justice. (35.) See Al Odah, 321 F.3d 1134. The Supreme Court, however, did cite twelve English opinions in its discussion of the history of the writ of habeas corpus Noun 1. writ of habeas corpus - a writ ordering a prisoner to be brought before a judge habeas corpus judicial writ, writ - (law) a legal document issued by a court or judicial officer . Rasul, 542 U.S. at 481-83,481 n. 11, 482 nn. 12-14. (36.) Ni v. U.S. Dept. of Justice (2d Cir. 02-4764, filed Nov. 18, 2002, judgment Sept. 13, 2005) (unsuccessful appeal of the denial of asylum asylum (əsī`ləm), extension of hospitality and protection to a fugitive and the place where such protection is offered. The use of temples and churches for this purpose in ancient and medieval times was known as sanctuary. by a Chinese citizen Chinese citizen can refer to
tr.v. ster·il·ized, ster·il·iz·ing, ster·il·iz·es 1. To make free from live bacteria or other microorganisms. 2. after having a second child contradicted his wife's statement that she fled China to avoid sterilization sterilization Any surgical procedure intended to end fertility permanently (see contraception). Such operations remove or interrupt the anatomical pathways through which the cells involved in fertilization travel (see reproductive system). ). (37.) Duferco Intl. Steel Trading v. T. Klaveness Shipping A/S (2d Cir. 02-7238, filed Mar. 07, 2002, judgment June 24, 2003) (unsuccessful appeal of the district court's refusal to set aside an arbitration decision concerning the shipping of steel slabs). (38.) Tenth Circuit Rule 36.3(A) formerly provided that "[u]npublished orders and judgments of this court are not binding precedents, except under the doctrines of law of the case, res judicata res judicata (rēz j  'dĭkā`tə): see jeopardy. ,
and collateral estoppel A doctrine by which an earlier decision rendered by a court in a lawsuit between parties is conclusive as to the issues or controverted points so that they cannot be relitigated in subsequent proceedings involving the same parties. ." Tenth Circuit Rule 36.3(B) formerly
provided that "[c]itation of an unpublished decision is disfavored.
But an unpublished decision may be cited if (1) it has persuasive value
with respect to a material issue that has not been addressed in a
published opinion; and (2) it would assist the court in its
disposition."
(39.) Jackson v. Barnhart, 60 Fed. Appx. 255, 256 n. 1 (10th Cir. 2003) (citing Bellamy v. Massanari, 29 Fed. Appx. 567 (10th Cir. 2002)). Jackson concerned Social Security disability benefits, and the citation to a previous unpublished opinion supported the statement that the court was continuing to apply a regulation concerning disability coverage for alcoholism alcoholism, disease characterized by impaired control over the consumption of alcoholic beverages. Alcoholism is a serious problem worldwide; in the United States the wide availability of alcoholic beverages makes alcohol the most accessible drug, and alcoholism is even after other related regulations had been amended. Id. at 256 n. 1. (40.) U.S. v. Cruz-Alcala, 338 F. 3d 1194 (10th Cir. 2003). (41.) Id. at 1197 (citing U.S. v. Molina-Barajas, 47 Fed. Appx. 552 (10th Cir. 2002)). The issue was whether a previous misdemeanor misdemeanor, in law, a minor crime, in contrast to a felony. At common law a misdemeanor was a crime other than treason or a felony. Although it might be a grave offense, it did not affect the feudal bond or take away the offender's property. By the 19th cent. conviction received in a proceeding in which the defendant was without counsel could be used as a factor in connection with sentence enhancement. The court stated that it had established no precedential authority on whether an involuntary involuntary adj. or adv. without intent, will, or choice. Participation in a crime is involuntary if forced by immediate threat to life or health of oneself or one's loved ones, and will result in dismissal or acquittal. INVOLUNTARY. or unknowing waiver The voluntary surrender of a known right; conduct supporting an inference that a particular right has been relinquished. The term waiver is used in many legal contexts. of counsel amounted to a complete denial of counsel, but acknowledged the existence of its unpublished opinion finding that the appellant had offered no evidence to rebut To defeat, dispute, or remove the effect of the other side's facts or arguments in a particular case or controversy. When a defendant in a lawsuit proves that the plaintiff's allegations are not true, the defendant has thereby rebutted them. TO REBUT. the state's evidence A colloquial term for testimony given by an Accomplice or joint participant in the commission of a crime, subject to an agreement that the person will be granted Immunity that the waiver was voluntary and knowing. Molina-Barajas, 47 Fed. Appx. at 555. (42.) Cruz-Alcala, 338 F.3d at 1199 (citing U.S. v. Viveros-Castro, 1998 WL 225053 (9th Cir. 1998)). The Cruz-Alcala court cited published opinions by the Fourth Circuit and the Eighth Circuit, and an unpublished opinion by the Ninth Circuit, to support a principle that for sentence enhancement purposes what matters is the sentence pronounced, not the actual amount of time served. (43.) "Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to or by the courts of this circuit, except in the following circumstances CIRCUMSTANCES, evidence. The particulars which accompany a fact. 2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or . (i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case or rules of claim preclusion pre·clude tr.v. pre·clud·ed, pre·clud·ing, pre·cludes 1. To make impossible, as by action taken in advance; prevent. See Synonyms at prevent. 2. or issue preclusion A concept that refers to the fact that a particular Question of Fact or law, one that has already been fully litigated by the parties in an action for which there has been a judgment on the merits, cannot be relitigated in any future action involving the same parties or their . (ii) They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy double jeopardy: see jeopardy. double jeopardy In law, the prosecution of a person for an offense for which he or she already has been prosecuted. In U.S. , sanctionable conduct, notice, entitlement An individual's right to receive a value or benefit provided by law. Commonly recognized entitlements are benefits, such as those provided by Social Security or Workers' Compensation. to attorneys' fees, or the existence of a related case. (iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders." 9th Cir. R. 36 3(b) (as amended eff. Jan. 1, 2007). (44.) Wiransane v. Ashcroft, 366 F.3d 889 (10th Cir. 2004). (45.) Id. at 898 (citing Limerta v. Ashcroft, 88 Fed. Appx. 363 (10th Cir. 2004); Lauw v. Ashcroft, 85 Fed. Appx. 871 (3d Cir. 2003)). (46.) "The court by tradition does not cite to its not precedential opinions as authority. Such opinions are not regarded as precedents that bind the court because they do not circulate cir·cu·late v. cir·cu·lat·ed, cir·cu·lat·ing, cir·cu·lates v.intr. 1. To move in or flow through a circle or circuit: blood circulating through the body. 2. to the full court before filing." 3d Cir. I.O.P. 5.7 (eff. 2002); see also EEOC EEOC abbr. Equal Employment Opportunity Commission EEOC n abbr (US) (= Equal Employment Opportunities Commission) → comisión que investiga discriminación racial o sexual en el empleo v. Watson Standard Co., 119 F.R.D. 632, 632 (W.D. Pa. 1988) (declining to reconsider re·con·sid·er v. re·con·sid·ered, re·con·sid·er·ing, re·con·sid·ers v.tr. 1. To consider again, especially with intent to alter or modify a previous decision. 2. earlier decision to take account of unpublished decision when counsel who brought that decision to the court's attention later challenged its precedential value); In re Mays, 256 B.R. 555, 558 (Bankr. D.N.J. 2000) (indicating that attorneys appearing before the court may rely on unpublished opinions in the absence of circuit or local rules prohibiting that reliance); Citation of Unpublished Opinions: Panel Discussion: The Appellate Judges Speak, 74 Fordham L. Rev. 1, 10 (2005) (remarks of Edward R. Becker, J., senior circuit judge and former chief judge of the Third Circuit) (noting that "we do not cite our own nonprecedential opinions in our opinions"). (47.) Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal vegetal /veg·e·tal/ (vej´e-t'l) vegetative (defs. 1, 2, and 3). veg·e·tal adj. 1. Of, relating to, or characteristic of plants. 2. , 546 U.S. 418 (2006). (48.) O Centro Espirita Beneficiente Uniao de Vegetal v. Ashcroft, 314 F.3d 463 (10th Cir. 2002) (OCEBUV I). (49.) O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003). (50.) O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (OCEBUV III). (51.) OCEBUV I, 314 F.3d at 467 (citing U.S. v. Brown, 72 F.3d 134 (8th Cir. 1995)) (unpublished opinion reported in table); OCEBUV III, 389 F.3d at 984 (Murphy, J., concurring in part and dissenting in part) (citing U.S. v. Brown, No. 95-1616 (Dec. 12, 1995)), 1020 (Seymour, J., concurring in part and dissenting in part) (same). (52.) Sixth Circuit Rule 28(g) used to discourage citations to unpublished opinions: Citation of unpublished decisions in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case. If a party believes, nevertheless, that an unpublished disposition has precedential value in relation to a material issue in a case, and that there is no published opinion that would serve as well, such decision may be cited if that party serves a copy thereof on all other parties in the case and on this Court. Such service shall be accomplished by including a copy of the decision in an addendum to the brief. The rule now permits such citations: "Citation of unpublished opinions is permitted." 6th Cir. R. 28(g). (53.) Smith v. Henderson, 376 F.3d 529, 536 (6th Cir. 2004) (citing Brown v. Chase Brass & Copper Co., 14 Fed. Appx. 482 (6th Cir. 2001)); Klimik v. Kent County Sheriff's Dept., 91 Fed. Appx. 396, 400 (6th Cir. 2004) (citing Bower v. Vill In old English Law, a division of a hundred or wapentake; a town or a city. VILL. In England this word was used to signify the parts into which a hundred or wapentake was divided. Fortesc. De Laud, ch. 24. See Co. Litt. 115 b. It also signifies a town or city. . of Mount Sterling, 44 Fed. Appx. 670, 677 (6th Cir. 2002)); Moore v. Potter, 47 Fed. Appx. 318, 320 (6th Cir. 2002) (citing Savage v. Unknown FBI Agents, No. 97-3311 (6th Cir. Feb. 10, 1998)). (54.) Hauck v. Commr. of Internal Revenue, 64 Fed. Appx. 492, 493 (6th Cir. 2003) (citing Perez v. U.S., No. 3:00CCV CCV canine coronavirus. 00302 (W.D. Tex. Oct. 11, 2001)). (55.) U.S. v. Quinones-Rodriguez, 70 Fed. Appx. 591, 591 n. 1 (1st Cir. 2003). (56.) See W.V. Realty realty n. a short form of "real estate." (See: real estate) REALTY. An abstract of real, as distinguished from personalty. Realty relates to lands and tenements, rents or other hereditaments. Vide Real Property. Inc. v. N. Ins. Co. of N.Y., 334 F.3d 306, 313-14 (3d Cir. 2003) (citing three unpublished opinions by the United States District court for the Eastern District of Pennsylvania The United States District Court for the Eastern District of Pennsylvania is one of the original 13 federal judiciary districts created by the Judiciary Act of 1789. It originally sat in Independence Hall in Philadelphia as the United States District Court for the District of ); In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. , 401 F.3d 143, 168 (3d Cir. 2005) (Ambro, J., concurring) (citing an unpublished decision of the United States District Court for the Eastern District of Pennsylvania). (57.) U.S. v. George, 363 F.3d 666, 672 (7th Cir. 2004) (citing U.S. v. Llera Plaza, 179 F. Supp. 2d 492 (E.D. Pa. 2002), vacated, U.S. v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa. 2002)). The cited opinion famously fa·mous·ly adv. 1. In a way or to an extent that is well known: "his famously neurotic mannerisms [are] lampooned in the novels of Evelyn Waugh" ruled that fingerprint fingerprint, an impression of the underside of the end of a finger or thumb, used for identification because the arrangement of ridges in any fingerprint is thought to be unique and permanent with each person (no two persons having the same prints have ever been evidence lacked sufficient scientific validity to be admissible (algorithm) admissible - A description of a search algorithm that is guaranteed to find a minimal solution path before any other solution paths, if a solution exists. An example of an admissible search algorithm is A* search. as evidence, but the district court vacated its own ruling and depublished its opinion on reconsideration re·con·sid·er v. re·con·sid·ered, re·con·sid·er·ing, re·con·sid·ers v.tr. 1. To consider again, especially with intent to alter or modify a previous decision. 2. . (58.) N.E. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 941 n. 5 (D.C. Cir. 2004) (citing consent decree entered in Sierra Club Sierra Club, national organization in the United States dedicated to the preservation and expansion of the world's parks, wildlife, and wilderness areas. Founded (1892) in California by a group led by the Scottish-American conservationist John Muir, the Sierra Club v. Whitman, No. 01-1537 (D.D.C. July 16, 200l)). (59.) The Second, Seventh, and Ninth Circuits still forbid for·bid tr.v. for·bade or for·bad , for·bid·den or for·bid, for·bid·ding, for·bids 1. To command (someone) not to do something: I forbid you to go. 2. citations to unpublished opinions issued before 2007 in unrelated cases. 2d Cir. R. [section] 0.23(c)(2); 7th Cir. R. 32.1(d); 9th Cir. L.R. 36-3(c). The Federal Circuit no longer forbids citation to its unpublished opinions. Fed. Cir. R. 32.1. (60.) See Figure 6. (61.) See FJC Study, supra n. 1, at 234, 242. (62.) Id. at 234, 238. (63.) Id. at 293, 299. (64.) Id. at 141, 144, 147, 151. (65.) 5th Cir. R. 47.5.4. (66.) See FJC Study, supra n. 1, at 181. (67.) Id. One case included a citation to a district court opinion and a state appellate opinion, id. at 181-82, 187; another case included a citation to a district court opinion, id. at 181, 184; and a third case included a citation to a state appellate opinion, id. at 182, 183. (68.) Pamela A. MacLean, The Fight to Cite: The 9th Circuit Is a Vocal and Formidable Opponent of the Move to Let Lawyers Cite Unpublished Opinions, Daily J. (Feb. 6, 2004), http://www.nonpublication.com/macleanarticle.pdf (accessed Sept. 21, 2006; copy on file with Journal of Appellate Practice and Process). (69.) Natl. Assn. of St. Utility Consumer Advocates v. FCC (1) (Federal Communications Commission, Washington, DC, www.fcc.gov) The U.S. government agency that regulates interstate and international communications including wire, cable, radio, TV and satellite. The FCC was created under the U.S. , 372 F.3d 454, 457 n. * (D.C. Cir. 2004). (70.) Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1262 (10th Cir. 2004) (McConnell, J., concurring). (71.) Id. at 1267 ("In Committee for the First Amendment The Committee for the First Amendment was an action group formed in September 1947 by actors in support of the Hollywood Ten during the hearings of the House Un-American Activities Committee. v. Campbell, 962 F.2d 1517 (10th Cir. 1992), a university student group challenged the decision of university officials to bar exhibition of a controversial film--The Last Temptation of Christ--but before the district court rendered a decision, the officials rescinded the order and the film was shown; subsequently the University adopted a new policy that comported with the First Amendment."). (72.) Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L. Rev. 227 (1999). (73.) Id. at 472-74, 526-58, app. C (showing all citations to any version of either American Heritage or Webster's). (74.) FJC Study, supra n. 1, at 24 & n. 41 (reporting very high agreement in the two samples with respect to the percentage of cases resolved by opinion among closed cases, r = .79, p = .001, and very high agreement comparing the percentage of opinions that are published, r = .86, p < .001). (75.) Our data suggest that approximately thirteen percent of cases filed in the federal courts of appeals in 2002 and 2003 were reviews of decisions by the Board of Immigration Appeals. Reviews of decisions by the Board of Immigration Appeals accounted for thirty-one percent of cases filed in the Second and the Ninth Circuits, and less than ten percent of cases filed in each of the other courts of appeals. Robert Timothy Reagan, Senior research associate, Federal Judicial Center. A.B. Stanford University Stanford University, at Stanford, Calif.; coeducational; chartered 1885, opened 1891 as Leland Stanford Junior Univ. (still the legal name). The original campus was designed by Frederick Law Olmsted. David Starr Jordan was its first president. 1980 (Psychology, Human Biology Human biology is an interdisciplinary academic field of biology, biological anthropology, and medicine which focuses on humans; it is closely related to primate biology, and a number of other fields. ); Ph.D. Harvard University Harvard University, mainly at Cambridge, Mass., including Harvard College, the oldest American college. Harvard College Harvard College, originally for men, was founded in 1636 with a grant from the General Court of the Massachusetts Bay Colony. 1986 (Psychology); J.D. University of California, Hastings College of the Law University of California, Hastings College of the Law is a premier, first-tier law school located in downtown San Francisco, California. It was founded in 1878 by Serranus Clinton Hastings, the first Chief Justice of California, as the first law school of the University of 1993. The views expressed herein are those of the author and not necessarily those of the Federal Judicial Center. APPENDIX A--FIGURES APPENDIX B--TABLES
Table 1. Counseled Briefs Filed in Cases Filed in 2002.
Percentage Percentage Estimated
of Cases of Cases Average
in Sample in Sample Counseled
With That Were Briefs
Counseled Fully Per
Circuit Briefs Briefed Case
First 46% 32% 0.89
Second 34% 28% 0.66
Third 50% 40% 0.98
Fourth 22% 12% 0.31
Fifth 34% 22% 0.68
Sixth 52% 36% 1.11
Seventh 34% 22% 0.72
Eighth 54% 40% 1.28
Ninth 32% 22% 0.69
Tenth 40% 34% 1.09
Eleventh 46% 30% 0.88
D.C. 42% 38% 1.11
Federal 41% 24% 0.77
All Circuits 39% 27% 0.80
(weighted
averages)
Table 2. Estimated Percentages of How Cases
Filed in 2002 Were Resolved.
Published Unpublished
Circuit Opinion Opinion No Opinion
First 24% 4% 72%
Second 16% 14% 69%
Third 10% 39% 51%
Fourth 2% 60% 38%
Fifth 6% 32% 62%
Sixth 12% 38% 50%
Seventh 16% 14% 70%
Eighth 34% 20% 46%
Ninth 6% 24% 69%
Tenth 18% 33% 49%
Eleventh 2% 38% 60%
D.C. 27% 44% 29%
Federal 10% 42% 48%
All Circuits 10% 31% 59%
(weighted
averages)
Table 3. Estimated Percentages of How Cases Without
Counseled Briefs Were Resolved.
Published Unpublished No
Circuit Opinion Opinion Opinion
First 0% 4% 96%
Second 0% 0% 100%
Third 0% 4% 96%
Fourth 0% 54% 46%
Fifth 0% 12% 88%
Sixth 0% 13% 88%
Seventh 0% 0% 100%
Eighth 0% 0% 100%
Ninth 0% 0% 100%
Tenth 0% 27% 73%
Eleventh 0% 0% 100%
D.C. 0% 48% 52%
Federal 0% 39% 61%
All Circuits 0% 11% 89%
(weighted
averages)
Table 4. Estimated Percentages of How Partially
Briefed Cases Were Resolved.
Published Unpublished No
Circuit Opinion Opinion Opinion
First 14% 14% 71%
Second 0% 67% 33%
Third 0% 80% 20%
Fourth 0% 80% 20%
Fifth 0% 83% 17%
Sixth 0% 75% 25%
Seventh 17% 67% 17%
Eighth 0% 100% 0%
Ninth 0% 100% 0%
Tenth 0% 100% 0%
Eleventh 0% 75% 25%
D.C. 0% 100% 0%
Federal 10% 90% 0%
All 2% 81% 17%
Circuits
(weighted
averages)
Table 5. Estimated Percentages of How Fully Briefed
Cases Were Resolved.
Circuit Published Unpublished No
Opinion Opinion Opinion
First 69% 0% 31%
Second 62% 38% 0%
Third 25% 70% 5%
Fourth 17% 83% 0%
Fifth 27% 64% 9%
Sixth 33% 56% 11%
Seventh 64% 27% 9%
Eighth 85% 15% 0%
Ninth 30% 70% 0%
Tenth 56% 31% 13%
Eleventh 7% 87% 7%
District of
Columbia 68% 32% 0%
Federal 33% 8% 58%
All Circuits 39% 54% 7%
(weighted
averages)
Table 6. Citations to Non-Statutory Authorities.
Unpublished Published
Court Court Other Other
Circuit Opinions Opinions Opinions Authorities
First 1.0% 92.5% 4.7% 1.8%
Second 1.9% 94.0% 2.6% 1.6%
Third 2.1% 92.4% 2.7% 2.9%
Fourth 0.7% 97.1% 1.7% 0.5%
Fifth 0.4% 99.1% 0.0% 0.5%
Sixth 5.0% 92.0% 0.5% 2.5%
Seventh 0.8% 97.9% 0.6% 0.7%
Eighth 1.0% 91.4% 6.2% 1.3%
Ninth 0.5% 95.6% 2.5% 1.3%
Tenth 1.6% 93.5% 1.4% 3.5%
Eleventh 1.4% 97.1% 0.5% 1.0%
D.C. 0.4% 81.3% 13.8% 4.5%
Federal 0.7% 94.0% 2.0% 3.3%
All Circuits 1.1% 90.1% 5.9% 2.9%
(weighted
averages)
Table 7. Citations to "Other Authorities."
Percentage of
Citations
Number of to "Other
Authority Citations Authorities"
Restatements 29 7%
Dictionaries 43 10%
Treatises 113 28%
Articles 108 26%
Other Books 58 14%
Reports, Manuals,
and Websites 58 14%
Movies and Poems 3 1%
All "Other Authorities" 412 100%
Table 8. Citations to Restatements.
Percentage of
Number of Citations to
Authority Citations Restatements
Restatement (3d) of Torts 1 3%
Restatement (2d) of Torts 13 46%
Restatement (1st) of Torts 1 3%
Restatement (2d) of Contracts 4 15%
Restatement (3d) of Property 1 3%
Restatement of Restitution 2 7%
Restatement (2d) of Judgments 1 3%
Restatement (2d) of Agency 2 7%
Restatement (2d) of Trusts 1 3%
Restatement (3d) of the 2 7%
Foreign Relations
Law of the United States
Restatement (2d) of Foreign
Relations Law of the
United States 1 3%
All Restatements 29 100%
Table 9. Citations to Dictionaries.
Percentage of
Number of Citations to
Dictionary Citations Dictionaries
Black's 17 40%
American Heritage 7 16%
Webster's 14 33%
Oxford 1 2%
Spanish-English 4 9%
All Dictionaries 43 100%
Figure 1. Cases Filed in Each Court of Appeals in 2002.
Cases
First 1,732
Second 5,384
Third 3,686
Fourth 4,698
Fifth 8,810
Sixth 4,612
Seventh 3,463
Eight 3,189
Ninth 12,365
Tenth 2,656
Eleventh 7,367
D.C. 1,105
Federal 1,793
Circuit
Note: Table made from bar graph.
Figure 4. Estimated 2002 Statistics
for the Federal Courts of Appeals.
Words (in Millions)
Circuit (Judgeships)
Cases or Briefs Cases Per Counseled Words in
Judgeship Briefs Per Counseled Briefs
Judgeship and Opinions Per
Judgeship
First (6) 289 256 1.4
Second (13) 414 273 1.9
Third (14) 263 258 1.8
Fourth (15) 313 97 0.6
Fifth (17) 518 352 2.2
Sixth (16) 288 320 1.8
Seventh (11) 315 228 1.5
Eight (11) 290 371 2.2
Ninth (28) 442 306 1.8
Tenth (12) 221 241 2.2
Eleventh (12) 614 540 2.9
D.C. (12) 92 102 0.8
Federal (12) 149 115 1.0
All Circuit (179) 340 270 1.7
Note: Table made from bar graph.
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