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Maybe the Fourth Circuit is trying to protect its brand?

Orin Kerr, one of the Volokh conspirators, published on that august blog the rates of unpublished opinions of the federal courts of appeals from September 2009 to September 2010. As a guy who practices in the Fourth Circuit, I knew they had a thing for unpublished opinions, I just didn’t realize how far out of line the Fourth Circuit is from its sister circuits.

Here’s the table:

Circuit/Percentage of Opinions that are Unpublished

4th Circuit/ 93.0%

3rd Circuit/ 89.8%

11th Circuit/ 89.6%

2nd Circuit/ 88.3%

5th Circuit/ 87.4%

9th Circuit/ 86.9%

6th Circuit/ 83.6%

10th Circuit/ 77.5%

8th Circuit/ 71.8%

1st Circuit/ 65.1%

DC Circuit/ 62.3%

7th Circuit/ 59.8%

What is up with that? It’s massively frustrating for litigants to think that their case doesn’t matter. When the court stamps — on 93% of it’s cases — language that says, in effect, “we’re not going to pay attention to this decision later”, the court undermines the confidence that litigants have that they’re getting a fair shake.

What explains the Fourth Circuit’s much higher rate of unpublished opinions, particularly in comparison to the D.C. Circuit? Do they have three times the number of Anders briefs?