University of Nevada Las Vegas
Numerous studies have pointed to the skewed picture of trial courts' workload, management, and disposition of cases that exists from examining Westlaw and Lexis opinions alone, akin to navigating the iceberg from its tip.4 But submerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions-putative precedent and not mere evidence of decision-making-that exist only on dockets. Submerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself not just trial courts' administration of it.
The existence of a submerged body of reasoned law carries the potential to destabilize our system of precedent and undermine the system's animating pnnciples of fairness, efficiency, and legitimacy by obscuring decisional law. To investigate whether these threats to the precedential system from submergence have materialized, this article presents an analysis of a sample of opinions: remand decisions from two district courts over seven years, all adjudicating federal-question removals of state-law claims. The study found that 30 percent of all reasoned opinions are submerged on dockets (and 44 percent of all decisions contain no reasoning at all). Looking purely at outcome measures (whether to grant or deny remand), the existence of submerged precedent distorts the picture of remand rates. In this sample, for example, reasoned opinions concerned with Employee Retirement Income Security Act (ERISA) federal questions remanded the case 63.67 percent of the time. Looking only in Westlaw, the remand rate drops to 46.67 percent, while 100 percent of the submerged cases were remanded.
Beyond just outcome measures, submerging reasoned opinions from public view carries the potential to skew the substantive law and permit inequitable adjudication. Although the small sample gathered here raises far more questions than it has the power to answer, several factors appear relevant to submergence: structure of legal tests, managerial discretion, party sophistication, and insulation from appeal.
Given these observations, there may be an ideal role for submerged precedent to play. As technology democratizes access to court opinions and eliminates traditional justifications for selective publication in bound volumes, these reflections on the balance between submergence and availability acquire even greater urgency. The E-Government Act of 2002 mandated online public access to federal courts' "written opinions," 5 catalyzing the federal courts to digitize their dockets and build the Public Access to Court Electronic Records (PACER) database for public access.6 BloombergLaw has added a more facile docket search interface for a fee, and the United States Government Printing Office has just branched out into free online access to court opinions through an FDSys pilot project. Yet the march toward unfettered public access to court decisions thus far has sidestepped thoughtful consideration of the interplay between technology, access, and precedent theory, while tacitly permitting submergence of reasoned opinions.
This article responds to this unique moment in the evolution of precedent and the recently-rekindled national debates over precedential values. The analysis proceeds in three parts. Part I surveys the existing empirical evidence about decision-making in district courts and describes the methods for collecting this data set. Part I then establishes the defining features of the submerged precedent identified in this data and compares the sample of district court decisions in Westlaw to those available only on dockets. By this comparison, the study reveals possible forces behind submergence and the potential for inequity and skew in the substantive law these opinions apply.
Part II illustrates submerged precedent's implications for precedent theory and for district courts' role in shaping law. Part II first anchors submerged precedent in precedent doctrine, explaining how submerged precedent's defining features reflect the doctrine's broader systemic goals of efficiency, predictability, and legitimacy. Part II then theorizes the threats that submergence may pose to those goals and highlights the unique institutional roles that district court opinions play.
Proceeding from Part I's empirical observations and Part II's theoretical foundations, Part III outlines submerged precedent's ideal role. In considering the optimal level of submergence, Part III considers technology's democratizing influence on the future composition of-and interface with-a civil justice system based in precedent. Ultimately, this project concludes that submerged precedent's existence should inform procedural and practical choices affecting the body of decisional law available to the public that it is intended to serve, suggesting that submerged precedent's debut here should presage its demise.
Nevada Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3683