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Date: Mar. 2021
From: University of Pennsylvania Law Review(Vol. 169, Issue 4)
Publisher: University of Pennsylvania, Law School
Document Type: Article
Length: 28,729 words
Lexile Measure: 1680L

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Abstract :

Significant numbers of federal appellate decisions are missing from Westlaw and Lexis. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits, at least twenty-five percent or more of the courts' self-reported merits terminations, which predominately include unpublished decisions, never make their way to these databases. Since at least 2007, when a rule change permitted citation to unpublished decisions from the federal appellate courts, scholars widely have assumed that commercial databases for legal research capture nearly all--if not, in fact, all--federal appellate merits decisions whether designated for publication in the Federal Reporter or not. Although scholars have long considered how publication practices shape access to court decisions--especially at the district court level--this is the first work to analyze and document widespread shortcomings of commercial database access to unpublished federal appellate decisions. Unraveling the widely held assumption of access raises concerns over our ability to navigate and uncover useful precedent and to determine basic information about how the federal system administers justice. The solution is as simple as it is transformational: all final judge-issued decisions from the federal appellate courts should be publicly and freely accessible on court websites. The courts themselves must be responsible for this change. How they issue decisions is the likely cause of missing decisions, and market pressures may not create sufficient incentive for private actors--the databases themselves--to undertake the steps necessary to recover what's missing.

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Gale Document Number: GALE|A667763454