Fourth Circuit Publication Practices

I. IntroductionCertain publication practices, especially dependence on issuing unpublished opinions, are one major response of federal courts to the increasing number of appeals. Few observers have assessed how specific tribunals employ these practices, although a recent study elucidates them. The Commission on Structural Alternatives for the Federal Courts of Appeals (Commission) gathered much useful data, which have remained strikingly constant, on each court.1 Because Fourth Circuit's publication practices and reliance on unpublished decisions allow the court to manage a large docket and suggest that it may not enunciate the common law, this Article scrutinizes those practices.The Article first describes the Commission's background and study and then examines that work to improve appreciation of the modern Fourth Circuit. The Commission assembled, evaluated, and synthesized voluminous data, some of which indicated that the tribunal could operate better. Most critically, the court now publishes opinions in a tenth of its appeals, which is the lowest percentage among the twelve regional circuits. This small percentage might show that the tribunal has ceased articulating the common law. However, the data lack sufficient refinement and breadth to ascertain precisely how the court functions. The last part of this Article offers suggestions, which emphasize greater study, and ideas that should ameliorate the common law heritage's apparent decline.II. A Brief Analysis of the Commission and Its WorkThe Commission history warrants limited review, as it has been analyzed elsewhere.2 Congress authorized the Commission mainly in response to concerns about the Ninth Circuit.3 The court's size has led to calls for bifurcation.4 Since 1983, lawmakers have attempted to divide the court.5 In 1997, Congress prescribed a study,6 granting the Commission a year to assess the appellate system, with an emphasis on the Ninth Circuit, and requiring the Commission to issue a report and proposals for such changes "as may be appropriate for" fair, expeditious and effective caseload disposition.7The Commission carefully followed the mandate.8 It sought written input and held six hearings,9 but no one urged major Fourth Circuit reforms.10 The Federal Judicial Center (FJC) and the Administrative Office of the U.S. Courts (AO) assisted the Commission." FJC staff performed numerous analyses and helped fashion surveys requesting judges' and lawyers' views.12 The Commission also collected statistical data, including the oral arguments and published opinions granted, the time to disposition (TTD), and the measures courts used to treat docket increases which have modified the tribunals since 1970.13 The Commission examined all of the material that it received, issued a draft report and proposals,14 and afforded thirty days for public comment.15 Little input addressed the Fourth Circuit.16 After the Commission scrutinized the public views, it released a final document that proffered a divisional approach for the Ninth Circuit and the remaining courts as they grow.17 The Commission also assembled much information on the Fourth Circuit.III. Analysis of the Commission's Fourth Circuit SnapshotA. Descriptive Analysis1. An Introductory WordThe Commission gathered, assessed, and synthesized objective empirical data and other relevant material, primarily from the 1997 fiscal year (FY), the most recent year that the information was available, although much of the data remains similar today.18 The data relate to numerous factors, including how many opinions tribunals publish, and what standards courts apply "to measure the [courts'] performance and efficiency."19 The Commission also used subjective criteria, namely circuit law's consistency, that defy analysis in part by surveying judges and counsel.20 Review of all the material for a court offers a composite picture. Comparing the statistics on each tribunal with others and the national average indicates how the court works, subject to applicable caveats. …