Last week, we tracked the yearly data as to how high a portion of the Court’s docket on both the civil and criminal sides consisted of published decisions from the Court of Appeal. This week, we’re analyzing another aspect of the difference between published and unpublished Court of Appeal decisions. Are decisions which were published below more likely to be published? One can imagine theories to justify either possible answer. Perhaps because they are precedent below, published Court of Appeal decisions are more stringently reviewed, and therefore more often reversed. Or perhaps, since unpublished Court of Appeal decisions aren’t precedential, the grant of review indicates that the Supreme Court believes the decision is wrong, suggesting that the reversal rate for unpublished decisions might be higher.
We report the yearly data from 1993 to 2017 in Table 426. Clearly, the answer is no – neither published nor unpublished civil cases are consistently reversed at a faster pace. Indeed, for many years, the reversal rate for published and unpublished civil decisions is quite close. In 1993, published civil cases were reversed 73.33% of the time, while unpublished civil cases were reversed 68.75% of the time. In 1994, published decisions were reversed in 62.5% of cases and unpublished decisions were reversed 73.68% of the time. In 1995, published decisions were reversed 55.88% of the time, and unpublished decisions were reversed in 47.83% of cases. Beginning in 1996, the reversal rate of unpublished decisions jumped to 83.33%, and it remained at 80% in 1997. The reversal rate for published decisions stayed flat – 55.56% in 1996, 53.33% in 1997. But that didn’t change the long-term trend; the reversal rate for unpublished decisions was between 50% and 70% every year from 2002 to 2008. The rate for published decisions was somewhat more variable: 50% in 2002, 75% in 2003, 45.71% in 2004, 52.94% in 2005, 63.41% in 2006, 59.09% in 2007 and 60% in 2008.
The reversal rate for published decisions remained at the same level in 2009 (57.14%) and 2010 (63.33%), while the reversal rate for unpublished decisions fell to one-third. In 2011, 82.61% of published decisions were reversed, while 60% of unpublished decisions were. In 2012, 71.43% of published decisions were reversed, while 80% of unpublished decisions were. The following year, reversals fell to 45.45% on the published side and to 50% on the unpublished side. In 2014, reversals increased slightly on the published side to 47.37%, and remained at 50% for unpublished decisions. In 2015, published civil cases were reversed 71.43% of the time. Unpublished decisions were reversed 75% of the time. In 2016, published civil cases were reversed 55.17% of the time, and unpublished civil cases were reversed 57.14% of the time. Finally, in 2017, published civil cases were reversed 57.58% of the time. Unpublished cases were reversed in 44.44% of cases.
Join us back here tomorrow as we review the data for the criminal docket.