"Judicial Ideology and the Decision to Publish: Voting and Publication Patterns in Ninth Circuit...

David S. Law, "Judicial Ideology and the Decision to Publish: Voting and Publication Patterns in Ninth Circuit Asylum cases," Judicature 89 (January-February 2006): 212-19

Political scientist and law professor David Law deals in this article with concerns expressed about the use of so-called

unpublished (and non-precedential) rulings by the U.S. Courts of Appeals. The concerns addressed are that such dispositions are used to "shield questionable decisions from scrutiny" and that judges intentionally "attempt to steer the evolution of precedent by favoring publication of cases that lean in a particular ideological direction" (p. 213). Law explores these concerns through examination of immigration (political asylum) cases from 1992-2001 in the U.S. Court of Appeals for the Ninth Circuit, which has a particularly large number of such cases and which has been thought to be particularly "liberal" in its approach to them.

Law finds mixed results. There is support for "precedent-steering" but not for "scrutiny-avoidance" (p. 214). Along the way to these conclusions, Law finds that overall ideology affected the outcomes of the court's dispositions overall, that is, whether published or unpublished, with judges appointed by Democratic presidents more sympathetic to asylum claims. Ideology's effect on the rate at which decisions (favoring or adverse to asylum) were published was mixed. On the one hand, panels with Democratic majorities and those with majorities of Republican appointees published at roughly the same rate, but, on the other hand, some Democratic appointees were more likely to favor publication when upholding an asylum claim. (A longer version of this article is "Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit," University of Cincinnati Law Review 73 [2005]: 817.)