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92 Tul. L. Rev. 745 (2017-2018)

handle is hein.journals/tulr92 and id is 793 raw text is: TULANE LAW REVIEW VOL. 92 APRIL 2018 No. 4 Strategic Publication Ben Grunwald* Under the standard account ofjudicial behavior when a panel ofappellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion. This Article argues that a divided panel has a third option: strategic publication. The panel can choose not to publish any opinion at all and thus sap its decision of precedential weight and insulate it from further scrutiny by higher courts. This Article also reports the results of a novel empirical analysis of case-level data on published and unpublished decisions in one federal circuit court. While it finds little empirical evidence that majority-Democrat panels in the sample engage in strategic publication, it finds evidence that majority-Republican panels do. The Article concludes by offering several policy proposals to diminish strategic publication by separating the publication decision from judicial negotiations over the merits. I. INTRODUCTION......................................746 II. UNPUBLISHED OPINIONS IN THE FEDERAL COURTS ...................753 Ilf. STRATEGIC PUBLICATION ........................ .....758 IV. STUDY DESIGN......................................762 A. Analytic Strategy ..................... .....763 B. Data ........................................764 V. RESULTS ...................................... .....766 * C 2018 Ben Grunwald. Assistant Professor, Duke University School of Law. For helpful comments and discussion, I am grateful to Will Baude, Adam Chilton, Harold Edgar, Lee Epstein, Wendy Epstein, William Hubbard, Aziz Huq, Robert Knowles, Marin Levy, Michael Livermore, John MacDonald, Jonathan Masur, Michael Pollack, John Rappaport, and the participants at the 2017 Chicago Junior Scholars Workshop and 2016 Conference on Empirical Legal Studies. Special thanks to Swift Edgar for many valuable conversations early on in the project. 745

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