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Communication of Appellate Decisions: A Multivariate Model for Understanding the Selection of Cases for Publication

Published online by Cambridge University Press:  01 July 2024

Burton M. Atkins
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Abstract

Much of the judicial process literature assumes that appellate courts routinely publish all decisions they make. In fact, even with the proliferation of case law in the United States, since the 1970s many appeals court decisions have not been published. In England, however, selective publication of appellate decisions has always been an integral part of how courts interact with the broader legal and political system. This article explores some theoretical implications of selective reporting of appellate decisions within common law systems that rely on the published appellate ruling as a primary mechanism of communication between courts and the broader legal and political environments. The focus is on how appellate decisions are selected for publication, especially in the English Court of Appeal. The author proposes an empirical model that conceptualizes reporting as a communications process. He hypothesizes that the basis of selection can be viewed in the context of a cue theory that dichotomizes the communication of passive and dynamic cues between senders in the Court of Appeal and receivers within the community of law reporters.

Type
Research Article
Information
Law & Society Review , Volume 24 , Issue 5 , 1990 , pp. 1171 - 1196
Copyright
Copyright © 1990 The Law and Society Association.

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Footnotes

This article is a revision of a paper presented at the Annual Meeting of the Midwest Political Science Association, Chicago, 13–15 April 1989. The research was supported by a grant from the National Science Foundation (SES-86-7878) and by grants from the Florida State University Foundation. I wish to thank Florida State University for extending to me the use of its facilities at its London Study Center. I would like to express gratitude to Mr. Stuart Cole, Chief Librarian of the Supreme Court Library at the Royal Courts of Justice when the data in this paper were being assembled, for allowing me access to, and use of, the Library's materials and facilities. Mr. Cole proved to be very patient in answering my many questions about the Court of Appeal and the transcripts of its judgments. I must also acknowledge that the many hours Mr. Gavin Drewry, Professor of Public Administration, University of London, spent with me discussing the English legal system helped immeasurably in the conceptualization and execution of the project. Mr. Peter Ruckman served admirably as my research assistant through much of this project. Neither he, nor Messrs. Cole and Drewry, of course, bear responsibility for any errors of fact or interpretation that I may have committed. I also wish to thank Shari Diamond and the anonymous reviewers for their helpful comments.

References

References

ATKINS, Burton M. (1991) “Party Capability Theory as an Explanation for Intervention Behavior in the English Court of Appeal,” American Journal of Political Science (forthcoming).CrossRefGoogle Scholar
ATKINS, Burton M. (1990) “Interventions and Power in Judicial Hierarchies: Appellate Courts in England and the United States,” 24 Law & Society Review 71.Google Scholar
ATKINS, Burton M. (1988) “Integration and Control Functions in Judicial Hierarchies: The English Court of Appeal and the Context for the Use of Appellate Review Power.” Delivered at the Annual Meeting of the American Political Science Association, Washington, DC, 31 Aug.–4 Sept.Google Scholar
BARNETT, M. J. (1969) The Politics of Legislation—The Rent Act 1954. London: Weidenfeld.Google Scholar
BAUM, Lawrence (1989) The Supreme Court Washington, DC: Congressional Quarterly Press.Google Scholar
CALDEIRA, Gregory (1988) “Legal Precedent: Communication Between State Supreme Courts” 10 Social Networks 29.Google Scholar
CALDEIRA, Gregory (1985) “The Transmission of Legal Precedent: A Study of State Supreme Courts,” 79 American Political Science Review 178.Google Scholar
CALDEIRA, Gregory (1983) “On the Reputation of State Supreme Courts,” 5 Political Behavior 83.Google Scholar
CANON, Bradley C., and Lawrence, BAUM (1981) “Patterns of Adoption of Tort Law Innovations: An Application of Diffusion Theory to Judicial Doctrines,” 75 American Political Science Review 975.Google Scholar
CHERRY, Colin (1957) On Human Communication. New York: John Wiley.CrossRefGoogle Scholar
DEVLIN, Patrick (1979) The Judge. Oxford: Oxford University Press.Google Scholar
EDDEY, Keith J. (1977) “The Law Reporting of the Court of Appeal (Civil Division).” Unpublished thesis, Oxford University.Google Scholar
EYESTONE, Robert (1977) “Confusion, Diffusion, and Innovation,” 71 American Political Science Review 441.Google Scholar
FOA, Pamela (1977) “A Snake in the Path of the Law: The Seventh Circuit's Non-Publication Rule,” 39 University of Pittsburgh Law Review 309.Google Scholar
GALANTER, Marc (1974a) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Review 95.Google Scholar
GALANTER, Marc (1974b) “Afterword: Explaining Litigation,” 9 Law & Society Review 347.Google Scholar
GEORGE, F. H. (1959) Automation, Cybernetics and Society. London: Leonard Hill.Google Scholar
GOLDMAN, Sheldon, and Thomas P., JAHNIGE (1985) The Federal Courts as a Political System. New York: Harper & Row.Google Scholar
GRAY, Virginia (1973) “Innovation in the States: A Diffusion Study,” 67 American Political Science Review 1174.Google Scholar
GRIFFITH, J. A. G. (1985) The Politics of the Judiciary. 3d ed. Glasgow: Fontana Press.Google Scholar
HARRIS, Peter (1985) “Ecology and Culture in the Communication of Precedent Among State Supreme Courts, 1870–1970,” 19 Law & Society Review 449.Google Scholar
HOFFMAN, Daniel N. (1981) “Non Publication of Federal Appellate Court Opinions,” 6 Justice System Journal 405.Google Scholar
INBAN, Michael (1979) Routine Decision-Making: The Future of Bureaucracy. Beverly Hills, CA: Sage Publications.Google Scholar
LANDES, William M., & Richard A., POSNER (1976) “Legal Precedent: A Theoretical and Empirical Analysis,” 19 Journal of Law and Economics 249.Google Scholar
LAW REPORTING COMMITTEE (1940) Report of the Law Reporting Committee. London: HMSO.Google Scholar
LINDLEY, Nathaniel (n.d.) “Paper on Legal Reports” (unpublished).Google Scholar
MNOOKIN, Robert H., and Lewis, KORNHAUSER (1979) “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale Law Journal 950.Google Scholar
MUNDAY, Roderick (1983) “The Limits of Citation Determined,” 25 Law Societies Gazette 1337.Google Scholar
NEUBAUER, David (1985) “Published Opinions Versus Summary Affirmations: Criminal Appeals in Louisiana,” 10 Justice System Journal 173.Google Scholar
POSNER, Richard A. (1985) The Federal Courts: Crisis and Reform. Cambridge, MA: Harvard University Press.Google Scholar
PRIEST, George L., and Benjamin, KLEIN (1984) “The Selection of Disputes for Litigation,” 13 Journal of Legal Studies 1.Google Scholar
PROVINE, Doris Marie (1980) Case Selection in the United States Supreme Court. Chicago: University of Chicago Press.Google Scholar
REYNOLDS, William L., & William M., RICHMAN (1981) “An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform,” 48 University of Chicago Law Review 573.Google Scholar
REYNOLDS, William L., & William M., RICHMAN (1978) “The Non-precedential Precedent—Limited Publication and No-Citation Rules in the United States Courts of Appeals,” 78 Columbia Law Review 1167.Google Scholar
ROBEL, Lauren K. (1989) “The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals,” 87 Michigan Law Review 940.Google Scholar
SMITH, P. F., and S. H., BAILEY (1984) The Modern English Legal System. London: Sweet & Maxwell.Google Scholar
SONGER, Donald (1988) “Nonpublication in the United States District Courts: Official Criteria Versus Influences from Appellate Review,” 50 Journal of Politics 206.Google Scholar
STEINSTRA, Donna (1985) Unpublished Dispositions: Problems of Access and Use in the Courts of Appeals. Washington, DC: Federal Judicial Center.Google Scholar
TANENHAUS, Joseph, SCHICK, Marvin, MURASKIN, Matthew, and Daniel, ROSEN (1963) “The Supreme Court's Certiorari Jurisdiction: Cue Theory,” in G. Schubert (ed.), Judicial Decision Making. Glencoe, IL: Free Press.Google Scholar
TEGER, Stuart, and Douglas, KOSINSKI (1980) “The Cue Theory of Supreme Court Certiorari Jurisdiction: A Reconsideration,” 42 Journal of Politics 834.Google Scholar
TUNKEL, Victor (1986) “The Court of Appeal Transcripts 1951–1980: The Microfiche Edition (An Introduction).” London: HMSO Books.Google Scholar
ULMER, S. Sidney (1984) “The Supreme Court's Certiorari Decisions: Conflict as a Predictive Variable,” 78 American Political Science Review 901.Google Scholar
ULMER, S. Sidney, William, HINTZE, and Louise, KIRKLOSKY (1972) “The Decision to Grant or Deny Certiorari: Further Consideration of Cue Theory,” 6 Law & Society Review 637.Google Scholar
VAN KOPPEN, Peter J., and Rob J. P., KOTTENHAGEN (1990) “How Decisions Reach the Market: Publication of the Decisions of the Dutch Supreme Court.” Presented at the Special Interim Meeting of the Research Committee on Comparative Judicial Studies of the International Political Science Association, London, 20–22 August.Google Scholar
WALKER, Jack L. (1969) “The Diffusion of Innovation Among the American States,” 63 American Political Science Review 880.Google Scholar
WALKER, Ronald J., and M. G., WALKER (1985) The English Legal System. 6th ed. London: Butterworths.Google Scholar
WASBY, Stephen L. (1976) Small Town Police and the Supreme Court: Hearing the Word. Lexington, MA: Lexington Books.Google Scholar

Cases Cited

Bowmaker Ltd. v. Britania Arrow Holding, PLC, 3 All England 178 (1988).Google Scholar
Brinks Mat Ltd. v. Elcombe, 3 All England 188 (1988).Google Scholar
Dormeuil Freres SA v. Nicolian International (Textiles) Ltd., 3 All England 197 (1988).Google Scholar
Gibson v. South American Stores, 177 Ch. 195 (1950).CrossRefGoogle Scholar
In re Laidlaw (unreported) (1935).Google Scholar
Roberts Petroleum Ltd. v. Kenny Ltd., 1 All England 564 (1983).Google Scholar
Stanley v. International Harvester Co. of Great Britain Ltd., 2 Feb. (unreported) (1983).Google Scholar
Yardley & Co. Ltd. v. Higson, 1984 Fleet Street Reports 314.Google Scholar

Statutes Cited

Domestic Violence and Matrimonial Proceedings Act, 46 Statutes 713 (1976).Google Scholar
Landlord and Tenant Act, 18 Statutes 553 (1954).Google Scholar
Matrimonial Causes Act, 17 Statutes 225 (1967).Google Scholar
Supreme Court Act, 51 Statutes 590 (1981).Google Scholar