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Missing Decisions

Significant numbers of federal appellate decisions are missing from Westlaw and Lexis. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits, at least twenty-five percent or more of the courts’ self-reported merits terminations, which predominately include unpublished decisions, never make their way to these databases.

Since at least 2007, when a rule change permitted citation to unpublished decisions from the federal appellate courts, scholars widely have assumed that commercial databases for legal research capture nearly all—if not, in fact, all—federal appellate merits decisions whether designated for publication in the Federal Reporter or not. Although scholars have long considered how publication practices shape access to court decisions—especially at the district court level—this is the first work to analyze and document widespread shortcomings of commercial database access to unpublished federal appellate decisions.