Certain publication practices, especially dependence on issuing unpublished opinions, are one major response of federal courts to the increasing number of appeals. Few observers have assessed how specific tribunals employ these practices, although a recent study elucidates them. The Commission on Structural Alternatives for the Federal Courts of Appeals (Commission) gathered much useful data, which have remained strikingly constant, on each court. Because Fourth Circuit's publication practices and reliance on unpublished decisions allow the court to manage a large docket and suggest that it may not enunciate the common law, this Article scrutinizes those practices.
The Article first describes the Commission's background and study and then examines that work to improve appreciation of the modem Fourth Circuit. The Commission assembled, evaluated, and synthesized voluminous data, some of which indicated that the tribunal could operate better. Most critically, the court now publishes opinions in a tenth of its appeals, which is the lowest percentage among the twelve regional circuits. This small percentage might show that the tribunal has ceased articulating the common law. However, the data lack sufficient refinement and breadth to ascertain precisely how the court functions. The last part of this Article offers suggestions, which emphasize greater study, and ideas that should ameliorate the common law heritage's apparent decline.
Carl Tobias, Fourth Circuit Publication Practices, 62 Wash. & Lee L. Rev 1733 (2005)