Wait, it's not online?!?

A new article reveals that many federal appellate decisions are not in the usual research databases!

MISSING DECISIONS by Merritt E. McAlister, 169 U. Pa. L. Rev. __ (forthcoming 2021) Significant numbers of federal appellate merits terminations— those decisions resolving appeals and other proceedings on the merits—are missing from Westlaw and Lexis, the leading commercial legal databases. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits huge percentages—at least 25% or more—of the courts’ self-reported merits terminations, which predominately include unpublished adjudications, never make their way to navigable databases. This is a startling discovery. Since at least 2007, when a rule change permitted citation to unpublished decisions from the federal appellate courts, scholars widely have assumed that commercial databases for legal research capture the vast majority of—if not all—federal appellate merits decisions whether designated for publication in the official Federal Reporter or not. Scholars have questioned that assumption previously in the immigration context. But it turns out that we have lacked navigable access to the complete work of the federal appellate courts for at least a decade.

 

• "Depending on the year, as many as 40% of merits terminations from the federal appellate courts are missing from commercial databases."
• "what’s missing from commercial databases appears to include disproportionately appeals from the most vulnerable litigants—including pro se litigants, criminal appellants, and non-citizens."
• "Part I explains just how wrong our assumptions about access to unpublished federal appellate decisions have been. Part II works through the details of this discovery, providing a deeper understanding of what appears to be missing from commercial databases by examining a sample of missing decisions from one circuit. Part III grapples with the implications of this discovery, including what this work means for our ability to navigate useful precedent and scrutinize the work of the federal appellate system. Part IV offers the fix: the federal appellate courts must transform their processes to make every final decision available on a free and publicly-accessible website."