
Contents
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Introduction Introduction
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Variation in Publication Rules Variation in Publication Rules
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The Process of Deciding on Publication The Process of Deciding on Publication
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Variation in Publication Rates Variation in Publication Rates
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Publication Rates Across Circuits Publication Rates Across Circuits
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Publication Rates by Rule Type Publication Rates by Rule Type
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Differences Between Published and Unpublished Cases Differences Between Published and Unpublished Cases
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Issue Area Issue Area
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Litigant Type Litigant Type
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Opinion Content Opinion Content
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Conclusions Conclusions
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Appendix 2.A: Coding Issue Area Appendix 2.A: Coding Issue Area
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2 Publication Policies and Practices
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Published:September 2024
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Abstract
This chapter provides a broad overview of how selective publication operates, starting with an exploration of variation across space and time. Publication rates vary by circuit from only 6% in the Fourth Circuit all the way up to 81% in the First Circuit. The frequency of publication also varies over time, although less dramatically. These differences are not necessarily surprising considering that each circuit has their own set of rules that govern the publication decision. After detailing key overlap and divergence in rules across circuits and over time, the chapter goes on to evaluate whether circuit-level publication practices map onto differences or changes in formal rules. Finally, features of rulings themselves are presented to describe how published and unpublished rulings vary in terms of a range of features including length, clarity, complexity, and use of binding and persuasive precedent.
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