Nina Varsava, Opinion Authorship and Precedential Status, 101 Wash. U. L. Rev. 1593 (2024).
Abstract
This Article presents original results from a large-scale empirical study of the relationship between opinion publication and judge demographics at the federal courts of appeals, focusing on gender and race. Opinion publication is significant because published federal appellate opinions, in contrast to unpublished ones, represent binding precedent and so shape the law. I find that, in the aggregate and holding other factors constant, opinions authored by men are more likely to be published than those by women, and opinions by white judges more likely to be published than those by Black judges. I find further that opinions by women and by Black judges receive fewer citations. Ifwe control for publication status, however, we no longer see this citation disadvantage, which suggests that the publication disparities may be responsible for it. My results indicate that judges from historically marginalized groups may have less opportunity than others to influence the law through published opinions. While the conversation around representation on the courts has revolved around the numbers of women and people of color on the bench, my study suggests that increasing these numbers may be insufficient for ensuring that these groups have equal opportunities to exercise voice and influence in the legal system. I discuss how gender- and race-based biases and power dynamics, together with the informal, non-transparent, and discretionary character of publication decisions, could lead to disparities in publication rates. This discussion raises pressing questions about the legitimacy of the opinion publication system in its current form. I then propose reforms that would mitigate
the kind of disparities identified and would make for a more intelligible and better justified system of publication and precedent.
