Thursday, June 2, 2016

Immigration Article of the Day: Unpublished Decisions and Precedent Shaping: A Case Study of Asylum Claims by Scott Rempell


Unpublished Decisions and Precedent Shaping: A Case Study of Asylum Claims by Scott Rempell, South Texas College of Law May 27, 2016 Georgetown Immigration Law Review, Forthcoming

Abstract: The federal courts of appeals now publish less than twenty percent of their decisions. Scholars and judges have debated the efficacy of depriving so many decisions of precedential value. Critics believe selective publication negatively impacts law development and distorts legal doctrines; selective publication’s defenders are not convinced the available evidence demonstrates pervasive problems in need of reform. Accounting for the limitations of past empirical assessments, this article provides the results of a study that was designed to foster a more concrete understanding of how selective publication impacts law development. The study draws on a comprehensive dataset of all asylum cases in the Ninth Circuit that addressed persecution law over a six-year period. The results show that the court reached inconsistent outcomes regarding a significant percentage of its unpublished cases. The court also incorrectly perceived how often it reached certain outcomes in past decisions, because so many of these outcomes were buried in unpublished dispositions. Additionally, many of the rule statements the court applied in unpublished decisions contradicted other rules, which indicates the “book law” is not completely settled. Finally, panels failed to address highly germane precedents that losing parties raised in their briefs. These shortcomings collectively suggest that appellate courts should reassess their case management procedures.


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