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Elizabeth Y. McCuskey, Submerged Precedent, 16 NEV. L. J. __ (forthcoming 2016), available at SSRN.

In the modern age, there is no shortage of information. The internet and the tools it has inspired lead many—myself included—to feel overwhelmed by the sheer volume of what is out there. As a consequence, I came to Elizabeth McCuskey’s Submerged Precedent with some degree of skepticism. McCuskey, after all, argues that even more information—in the form of “submerged” district court opinions—should be made readily available. After reading this carefully researched and artfully written article, however, I am a believer. And I think you will be too.

First, what is “submerged precedent?” Although district courts do not create vertically or horizontally precedential opinions in the strictest sense, McCuskey argues that district court opinions contribute to how decisional law develops. She adopts a broad view of precedent—reaching any court opinion that provides reasoned arguments—which results in a large body of persuasive law. As McCuskey argues, however, the law can only be persuasive to the extent it is available to the parties, and consequently, to courts. This is where submersion comes into play. The question is which district court opinions are available and where. District court judges designate opinions that they deem to be particularly important as “published.” Those opinions then appear on Westlaw (or other legal databases such as Lexis, but for ease, I will refer to only Westlaw). Unpublished district court opinions may also appear on Westlaw, but only if the authoring judge designates them as “written opinions.” What remains “submerged” are reasoned decisions that do not carry these designations. Instead, they can only be found on databases such as PACER, which has limited search functionality and charges a fee for everything other than “written opinions,” or Bloomberg, which while more searchable, is quite expensive. These opinions constitute the submerged precedent about which McCuskey is concerned.

Second, do we really care about “submerged precedent”? McCuskey argues that we should be concerned. Her argument develops in two parts—one is data-driven and the other is theoretical.

The data argument relies on a dataset McCuskey collected that looks at federal question opinions under Grable & Sons Metal Prod. v. Darue Eng’g & Mfg. The results span a seven-year period of cases in two federal districts. McCuskey compared the rates of remand to state court in “published and unpublished opinions” found on Westlaw with the remand rates in opinions deemed submerged precedent. Of all of the remand decision, about 56% were reasoned decisions. Of those reasoned decisions, 39% were on Westlaw and 17% were submerged. Looking only at the reasoned decisions and comparing Westlaw decisions to submerged ones, McCuskey found notable differences. For example, in ERISA cases, where close to 32% of the reasoned decisions were submerged, the overall remand rate (combining Westlaw and submerged) was 64%, but the Westlaw remand rate was 47% while the submerged remand rate was 100%. In almost every category of cases, the Westlaw remand rate was lower than both the overall and submerged remand rates. In other words, the results in cases that are readily available are skewed.

McCuskey acknowledges a number of limitations to her findings—the small dataset, the limitations created by the substantive law, and the fact that outcome differences really do not matter unless the opinions’ reasoning is also meaningfully different. This latter limitation prevents McCuskey from drawing a strong conclusion from her dataset; her review of the opinions’ reasoning leaves her at something of a draw. Calling for more research of this kind, but perhaps with a different legal question at a different procedural time, McCuskey concludes that her dataset is illuminating, but not conclusive as to whether we should care about submerged precedent.

This leads McCuskey to her theoretical arguments, grounded in concerns for fairness, efficiency, and legitimacy. For litigants to feel fairly treated, McCuskey argues, they must have access to all of the opinions so that those litigants, and the public itself, can see whether courts are consistent. In the interest of efficiency, it is important for judges to have access to the full spectrum of opinions, providing additional templates for handling similar issues as they arise. The availability of more opinions means that the system is transparent and thus legitimate. Moreover, litigants have a stronger sense of having had their day in court when the opinions are widely available. In addition to these systemic values, the opinions have intrinsic value. District courts, for example, are often the only courts to regularly handle weighty issues like discovery disputes. Because those kinds of issues are often shielded from appellate review, the availability of a larger segment of those opinions is meaningful. Finally, district court judges can wield a great deal of power in how the law develops. McCuskey cites District Judge Jack Weinstein of the Eastern District of New York as one who has had a strong impact on complex litigation. Access to more reasoned opinions from district court judges would give them an even greater impact on how the law evolves.

Having established that submerged precedent is important, McCuskey wrestles with how and to what degree to increase the availability of opinions. As a purist, she argues that all of it should be made available because it is the morally right thing to do and also because the E-Government Act of 2002 requires all “written opinions” to be available for free on PACER. Yet she acknowledges that there are drawbacks to this much access. For example, if judges knew that all of their opinions would be available, they might be less inclined to write reasoned opinions, depriving litigants of the satisfaction of seeing their cases thoroughly handled. In addition, the quantity of information might simply be overwhelming. This leads McCuskey to argue in favor of a “some submergence” solution, in which some opinions remain submerged but more opinions overall see the light of day. She then contends with how to create a system that brings the right opinions to the fore. She offers a number of solutions. These include a rule of professional responsibility that requires attorneys to conduct some level of court-docket research; a “publication panel” to decide what to designate as “written opinions,” removing the publication decision from the authoring judge; or a rule requiring judges to include reasoning in their opinions, much as Rule 11 mandates and Rule 56 suggests.

Whatever the method, now that McCuskey has brought submerged precedent to the surface, we cannot ignore its presence. As always, finding the optimal solution is a challenge. But her article takes us a long way toward reaching one.

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Cite as: Brooke D. Coleman, Bringing Court Reasoning to the Surface, JOTWELL (February 4, 2016) (reviewing Elizabeth Y. McCuskey, Submerged Precedent, 16 NEV. L. J. __ (forthcoming 2016), available at SSRN),