Nearly two years ago, we commented on the increasing frequency with which federal courts of appeals issue per curiam, and often short and unsigned, opinions. Specifically, we noted that the use of such opinions had increased significantly 2013, year over year. This increase was consistent with the general modern trend toward per curiam opinion. This post investigates whether that trend has continued.
After a few years of increases, there was a sharp decrease in the number of per curiam opinions in 2015.
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In our last post, we wondered whether increasingly common use of per curiam opinions was largely a result of a rising appellate caseload. We are not surprised, therefore, to find that this sharp decrease in per curiam opinions corresponds to a decrease in the total number of case terminations. However, we were more interested in the relationship between the year-over-year change between total cases terminated and the number of per curiam opinions. Our research indicated that from 2014 to 2015 the total number of opinions fell by 5.8%. However, over the same time, the number of per curiam opinions issued by the circuit courts fell by over 12%. Additionally, the total number of per curiam opinions, as a percentage of terminated cases, decreased from nearly 4% to just over 3%. While this research is far from scientific and the sample size is likely too small to draw any predictive conclusions, our results seems to support for the idea that more terminations means that the judges will engage in a disproportionately higher number of per curiam opinions. Conversely, as we recognized in this research, fewer terminated opinions leave more time for judges to author signed opinions which disproportionately decreases the need for and occurrence of per curiam opinions.
Our research of per curiam opinions also included circuit specific data and revealed significant variation between the frequencies with which the various circuit courts author per curiam opinions. The Fourth Circuit (5%), Fifth Circuit (5%), and Eleventh Circuit (7%) produced the highest percentage of per curiam opinions as a percentage of total cases terminated while the Second Circuit (.15%) had just a handful. The Sixth Circuit, which uses per curiam opinions in only 3% of its decisions, falls squarely in the middle.