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Elizabeth McCuskey, Submerged Precedent, 16 Nev. L. Rev.  ___ (forthcoming 2016), available at SSRN.

In Submerged Precedent, Professor Elizabeth McCuskey unearths new data on the rate of remand from federal to state courts in suits alleging 28 U.S.C. § 1331 jurisdiction under a Grable & Sons theory. As part of her vigorous data collection project, McCuskey determined that substantial numbers of the district court opinions she studied never found their way into commercial databases or PACER, substantially skewing our understanding of caselaw in this area. From this starting point, she launches into an intriguing normative discussion on the need to bring this body of “submerged precedent” to the surface. She concludes with a call for a strong presumption that all reasoned district court opinions be made publically available. For those of us who study the federal courts, Submerged Precedent’s raises intriguing empirical and doctrinal questions to which we should turn our attention.

McCuskey’s study focuses upon a particular method of taking § 1331 jurisdiction in federal court. The vast majority of cases take § 1331 jurisdiction under the so-called Holmes test (i.e., vesting § 1331 jurisdiction because the plaintiff raises a federal cause of action). There exists, however, a narrow exception to the Holmes test whereby federal question jurisdiction may lie over state-law causes of action that necessarily require construction of an embedded federal issue. McCuskey focuses her work on these cases, seeking to discover the rate at which suits removed to federal court under that theory are remanded from to state court.

Instead of taking the typical appellate-court focused approach to this question, McCuskey looks solely to district court action. Her chosen jurisdictional issue is especially ripe for a district-court-focused study because, contrary to the general rule, these jurisdictional remands are not subject to appellate review. As a result, this area lacks much on-point appellate precedent.

In conducting her examination, McCuskey studies two districts, the Eastern District of Virginia and the Northern District of Illinois, looking for all remand opinions in Grable & Sons-style cases from 2002 to 2008 (hence studying activity both immediately before and after the 2005 Grable & Sons decision). Key to her study was reaching beyond both commercially available databases (e.g., Westlaw and Lexis) and the publically available data on the federal PACER system, which generally mark the boundaries for empirical judicial-work-product studies. As McCuskey details, not every district court action makes it to the publically available data on PACER, regardless of whether one is accessing for free or in the fee-driven service. In her data set, she pulls all decisions directly from dockets, a difficult collection process to say the least. Indeed, I believe her work to be the only empirical study addressing federal-court jurisdictional issues that relies upon this robust a data set.

Having collected this data, McCuskey reveals that our typical reliance upon non-docket-sourced data skews our understanding of jurisdictional decisions. She found that if one limits the data set of remand decisions to Westlaw, publically available data on PACER, and the like, it would appear that her targeted set of cases—state law causes of action with embedded federal issues—are remanded at a 62% rate. Her direct-docket-pull study, however, found that the remand rate was actually 76% for these cases. The difference between those numbers represents a body of cases that fall through the cracks in the move from the direct-docket-pulled rulings in her study to the more traditional data sources of Westlaw and publically available data on PACER. This is what McCuskey labels submerged precedent and aims to raise to the surface.

Having discussed these empirical findings and the methods used, McCuskey turns next to a normative analysis. She discusses why district court opinions, while not binding precedent, are of great value to the legal system and why docket-only decisions run counter to important rule-of-law norms such as legitimacy, transparency, equal application, consistency, and efficiency. As part of this discussion, McCuskey argues for reform. She contends that there should be a strong presumption that all reasoned decisions—as opposed to non-reason-giving minute orders—should be made publicly available. Here she relies upon the E-Government Act of 2002 as a positive-law foundation to further her normative position that rule-of-law norms require access to all sources of law, including non-precedential district court decisions.

McCuskey’s piece demands our engagement on many levels. The overwhelming study of judicial activity, and precedent in particular, focuses upon appellate decision-making. Yet, trial courts conduct the vast majority of judicial activity. This mismatch of scholarly attention and judicial activity is all the more apparent in analyses of jurisdiction. McCuskey bucks this trend. Submerged Precedent is the second, in what I hope is a long-lived series, of pieces addressing federal trial court precedent on jurisdictional issues. The fact that she takes an empirical bent, and one with novel collection practices no less, only adds to the value of the piece.

Moreover, McCuskey’s work is deeply thought provoking. I, for one, question whether her data set is limited by selection bias on a couple of scores. First, she examines two high-population, urban districts. I am not sure if this population issue matters in jurisdictional opinions, but it certainly might. Second, her cases (remand cases) are unique in that appellate review is not available. I, at least, am concerned that this fact may impact how decisions are written and the rates at which they are “submerged” vis-à-vis matters subject to appellate review. Finally, I am curious if the application of more robust empirical methodologies, when coupled with her robust collection, could yield more information from her data sets.

On the normative side of her piece, McCuskey tends to make claims about the value of “un-submerging” precedent generally based upon data from a limited slice of remand cases that are not subject to appellate review. These cases certainly make for the strongest case for full publication. But I question if the same cost-benefit analysis holds in matters where we have a robust set of appellate decisions—say, in suppression-of-evidence cases. Because appellate courts make publically available near all of their rulings (both in “published precedential” and “non-precedential” forms), in areas such as suppression, there are already thousands upon thousands of opinions such that the addition of new district court rulings would seem to add little from a rule-of-law perspective.

Additionally, while she addresses the topic, one could question whether McCuskey appropriately values the importance of not making precedent. Much of what district courts do is exercise discretion. That is to say, what they are after often is not easily captured in the values of consistency and equal application on which McCuskey focuses. From this vantage, perhaps exercises of discretion should be submerged. Indeed, her data set of jurisdictional remands, which are more rule-bound decisions than exercises of discretion, does not reach this issue in a way that is equally germane in other areas of law.

Finally, I remain curious how judges would react to the full-publication regime McCuskey advocates. Judges might resort more often to orally delivered, less-reason-giving rulings so as to avoid publication, both to avoid the time investment required in publication and the potential that published decisions would hem in the judge in future cases. I, for one, fear that such an outcome is likely, which would be a disservice to parties at little added benefit to the system.

In the end, all these potential criticisms really show is that McCuskey is a provocative and engaged scholar. Her work fills critical gaps in the jurisdictional literature in a meaningful way. I am sure, therefore, you will learn much from her scholarship. I certainly have.

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Cite as: Lumen N. Mulligan, Should We Publish All District Court Opinions?, JOTWELL (March 16, 2016) (reviewing Elizabeth McCuskey, Submerged Precedent, 16 Nev. L. Rev.  ___ (forthcoming 2016), available at SSRN),