The latest statistics on unpublished opinions show an important trend between the circuits.  Across all circuits, 86% of written opinions are unpublished.  That means they are not precedential, so they do not create circuit law.  And most of those unpublished opinions, 69% of them in 2022, were also unsigned.  The Sixth Circuit mirrors the general trend.  In 2022, 89% of its opinions were unpublished, and 54% were both unsigned and unpublished. 

But three circuits, the First, Seventh, and Eighth, buck this trend by publishing a far higher percentage of their opinions.  The Seventh Circuit, with 16 judges, publishes more decisions than the combined Second (29 judges) and Third Circuits (24 judges).  The judges on the First, Seventh and Eighth Circuits publish about 30 decisions each year, while the rest of the circuits average about 10 decisions per year.  On a per judge basis, each of three circuits issue four times more precedential opinions than the Second and Third Circuits, and three times more than most other circuits (including the Sixth Circuit).  Three observations come to mind from this disparity between circuits. 

First, in general, binding precedent is a good thing for people and businesses.  Finding law that squarely address the question at issue, or a case with similar-enough facts to make comparisons, saves everyone time and money.  It will often resolve a dispute before it develops into litigation, narrow a discovery dispute, or enable parties to settle.  In the same way, a split between district courts or between panels in a circuit encourages disputes by convincing each side they have a winning argument.  Having a settled answer reduces costs and uncertainty for businesses and also allows victims to achieve redress more quickly.  I could not find any studies on the subject, but there must be economic and social value for each precedential opinion (on substantive issues) by reducing disputes and encouraging investment. 

Second, judges and circuits that choose to publish more often might wield an outsize influence on the development federal law.  Finding binding precedent is often difficult, and both litigants and courts often need to look outside the circuit to find a close case.  As a result, cases from those circuits may be cited more often because they are listed as published, to the detriment of decisions from other circuits that may be equally persuasive but were listed as unpublished.  That said, a circuit or judge’s reputation and the type of cases that it decides likely have a larger effect their influence than the sheer number of published cases they create.  Spending more time per published opinion might also result in higher-quality opinions.

Third, the difference between the circuits highlights the importance of each circuit’s culture and unwritten rules.  Having clerked on the Third Circuit, I was not surprised to find that the circuit had a low (in fact, the lowest) number of published opinions per judge.  The circuit, as a whole, values restraint and moderation and, more specifically, encourages careful consideration before deciding whether to publish an opinion.  While choosing to publish is an individual decision, there is a fair amount of peer-pressure to adhere to the status quo in any circuit, as judges are well aware which of their colleagues chooses to publish more often than the norm.