The federal district judge and the decision to publish: Cautious contributor to precedent or unconstrained policy advocate?

摘要

Federal district court judges decide to publish just one or two out of every ten opinions that they write. Only published opinions are readily available to persons beyond the parties to the lawsuit, only published opinions create public policy by establishing precedent that the legal community and the public will rely on. Is it possible to explain why judges publish opinions in some cases and not others? Prior studies of federal district court publication have found important differences between the pools of published and unpublished opinions. I take a different tack and test for the influence of several legal and extra-legal factors on the judges' decisions to publish. This study thus contributes to the literature on judicial decision making by examining the goals operative when judges make publication decisions, an important decision left largely to individual judges' complete discretion. Specifically, I test for the influence of the one legal constraint on publication, the official publication guidelines. I also test for the influences of presidential appointment, judicial career experience, and powerful, well-placed litigants and counsel on federal district judges' publication decisions.; For the independent variables, I examined a random sample of all U.S. court of appeals opinions available on LEXIS which were appealed from the federal district courts in 1996. From these I gleaned information about published and unpublished decisions made by district court judges in 1996. The dependent variable is whether the district court opinion is available on LEXIS.; I find that federal district court judges seem likely to publish opinions that meet the official publication guidelines, that were decided in a liberal direction, and that feature powerful, well-placed litigants and counsel. I also find some evidence that judges with particular career backgrounds are influenced by this background in deciding which opinions to publish. There is not evidence that the appointing presidents' ideological preferences influence their appointees' publication decisions.; One implication of this study is that district court judges use publication as a means of pursuing a goal central to many judges, achieving legal accuracy and clarity. Other goals that are often attributed to judges, particularly promoting their policy preferences or those of their appointing presidents, may indeed be less central. Another implication of this study is that the three traditional models of judicial decision making, the attitudinal, strategic and legal models, are less than satisfactory in explaining the publication decision. Instead, a model recognizing that judges' behavior is motivated by a wide range of goals (the multiple-goal-based framework) is the most useful in modeling publication by federal district court judges.