Unpublished Appellate Opinions-A Tale of Two Circuits

By Christopher Keleher
Founder

It’s an open secret that most federal appellate courts dispense with their cases via unpublished opinions. The numbers are in for 2022, and to be precise, 86% of federal appellate opinions were unpublished. This published-unpublished distinction is important because an unpublished decision is not precedential, and thus does not create circuit law. Examining the numbers of other federal circuit courts, the Seventh Circuit is an outlier at 65% unpublished. Only the D.C. Circuit published more. Comparing the Seventh Circuit to its neighbor in Cincinnati, the Sixth Circuit, captures the divergence. In 2022, the Sixth Circuit left 89% of its opinions unpublished. So while the Sixth Circuit handled almost twice the number of appeals the Seventh Circuit did last year, the Sixth Circuit published approximately half the number of opinions. While this subject may appear wonkish, there are real world implications. Because litigants (and courts) look to published decisions to support their positions, the Seventh Circuit wields a far greater influence on the development of federal law nationwide than the Sixth Circuit.

About the Author

Christopher Keleher clerked for the Hon. William J. Bauer of the U.S. Court of Appeals for the Seventh Circuit.  This unique opportunity provided Mr. Keleher with an invaluable understanding of the inner workings of an appellate court.  He saw what persuades judges and what does not, and utilizes this knowledge every time he writes an appellate brief. The Keleher Appellate Law Group handles all phases of appellate litigation in federal and state courts across the country. Read more here.