Rantanen, Jason, Missing Decisions and the United States Court of Appeals for the Federal Circuit (September 20, 2021). University of Pennsylvania Law Review, Forthcoming, U Iowa Legal Studies Research Paper No. 2021-46.
“Merritt McAlister’s Missing Decisions is an important contribution to our understanding of civil procedure, judicial decision making, and the law itself. McAlister’s study demonstrates that many merits terminations by federal appellate courts aren’t readily accessible to the public, nor do they show up in major legal research databases like Westlaw, Lexis and Bloomberg. Two of the limitations of Missing Decisions are that it relies on summary statistical tables to quantify the portion of merits terminations that are “missing,” and it doesn’t include the United States Court of Appeals for the Federal Circuit because its statistical tables are in a different format than other circuits. Yet, the Federal Circuit is a prime candidate for understanding the issue of “missing decisions.” It is a court that has employed summary decision making to great extent, even as it is perhaps the most scrutinized court outside of the Supreme Court. This response draws on datasets of the Federal Circuit’s dockets and decisions to examine the issue of “missing decisions” at the Federal Circuit. It finds that while the Federal Circuit makes virtually all of its decisions on the merits of an appeal available on its website, there are still many decisions that are only accessible via the appeal dockets themselves—McAlister’s Missing Decisions. In particular, decisions on the appropriateness of an appeal, such as appellate jurisdiction or timeless, are commonly not posted to the court’s website.”