Significant numbers of federal appellate merits terminations—those decisions resolving appeals and other proceedings on the merits—are missing from Westlaw and Lexis, the leading commercial legal databases. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits huge percentages—at least 25% or more—of the courts’ self-reported merits terminations, which predominately include unpublished adjudications, never make their way to navigable databases.
Although scholars have long considered how publication practices shapes access to court decisions—especially at the district court level—this is the first work to analyze commercial database access to unpublished federal appellate decisions. Since at least 2007, when a rule change permitted citation to unpublished decisions from the federal appellate courts, scholars widely have assumed that commercial databases for legal research capture nearly all—if not, in fact,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 official Federal Reporter or not. Scholars have questioned that assumption previously in the immigration context. But it turns out that access problems extend well beyond the immigration context, and we have lacked navigable access to the complete work of the federal appellate courts for at least a decade.
Unraveling that widely-held assumption raises concerns over our ability to navigate and uncover useful precedent and to determine basic information about how the federal system administers justice. We cannot understand and assess the work of the federal appellate courts without navigable access to what is missing. 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. Their decisional issuance schemes are the culprits, and market pressures may not create sufficient incentive for private actors—the databases themselves—to undertake the steps necessary to recover what’s missing.
Merritt E. McAlister, Missing Decisions, 169 U. Pa. L. Rev. 1101 (2021)