Publication and Strategy in the U.S. Courts of Appeals

In order to keep up with a burgeoning caseload, the U.S. Courts of Appeals developed the practice of designating some opinions as unpublished. Such opinions are exceptionally unlikely to be reviewed. This raises the possibility of two types of strategic behavior. First, judges may seek to avoid review by leaving more opinions unpublished when they are ideologically distant from reviewing courts. Second, judges may be less influenced by their principals when resolving unpublished cases. I conduct empirical analyses using an expansive dataset of opinions from 2002 to 2012. There is some evidence of both types of strategic behavior.