Hostname: page-component-78c5997874-94fs2 Total loading time: 0 Render date: 2024-11-02T21:36:37.314Z Has data issue: false hasContentIssue false
  • English
  • Français

Studying the Iceberg from its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases

Published online by Cambridge University Press:  01 July 2024

Peter Siegelman  and
John J. Donohue III
Rights & Permissions [Opens in a new window]

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

Researchers often rely on published opinions to draw conclusions about cases decided by the courts, determinants of court decisions, and broader social phenomena. We demonstrate that 80 to 90 percent of employment discrimination cases filed in federal court do not produce a published opinion. There are good theoretical reasons to believe that the process generating a published opinion is not random and thus that samples of published cases will not be representative of all cases. Through a direct comparison of published and unpublished cases, we show that the two actually do differ in significant and predictable ways. Examining several studies that use cases with published opinions for a variety of purposes, we show how our understanding of the operation of employment discrimination law changes—in some instances, dramatically—when we look at all cases, whether or not they have published opinions.

Type
Research Article
Information
Law & Society Review , Volume 24 , Issue 5 , 1990 , pp. 1133 - 1170
Copyright
Copyright © 1990 The Law and Society Association.

Footnotes

We thank research assistants Dawn Jeglum Bartusch, Steven Martin, and Kirsten Alesch Muth for their superb assistance with all phases of this highly RA-intensive work. The staff at the Administrative Office of the United States Courts, especially Dave Cook, provided us with important data and was generous in answering our questions. The article benefited from helpful comments by Ted Eisenberg, James Hughes, Vicki Schultz, and an anonymous referee. Listing of the authors' names in reverse alphabetical order is a random event in the course of their collaboration.

References

References

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (AO), STATISTICAL ANALYSIS AND REPORTS DIVISION (June, 1989) “Instructions for Completing District Court Reporting Forms,” ch. 5 in 11 “Statistics Manual.” Washington, DC: unpublished.Google Scholar
AMERICAN LAW INSTITUTE (ALI) (1989) Employment Discrimination and Civil Rights Actions in Federal and State Courts Philadelphia: ALI.Google Scholar
BRENNER, S. (1989) “Of Publication and Precedent: An Inquiry into the Ethnomethodolgy of Case Reporting in the American Legal System.” Unpublished.Google Scholar
BUMILLER, Kristin (1988) The Civil Rights Society. Baltimore: Johns Hopkins University Press.Google Scholar
BURSTEIN, Paul (1989) “Attacking Sex Discrimination in the Labor Market: A Study in Law and Politics,” 67 Social Forces 641.Google Scholar
BURSTEIN, Paul (1988) “Labor Market Discrimination, Social Science, and the Law.” Unpublished.Google Scholar
BURSTEIN, Paul, and Kathleen, MONAGHAN (1986) “Equal Employment Opportunity and the Mobilization of Law,” 20 Law & Society Review 355.Google Scholar
CARP, R. A., and C. K., ROWLAND, Policymaking and Politics in the Federal District Courts (1983).Google Scholar
CARTWRIGHT, Bliss (1975) “Conclusion: Disputes and Reported Cases,” 9 Law & Society Review 369.Google Scholar
COOTER, Robert, and Daniel, RUBINFELD (1989) “Economic Analysis of Legal Disputes and Their Resolution,” 27 Journal of Economic Literature 1067.Google Scholar
CULP, Jerome M. (1985) “A New Employment Policy for the 1980s: Learning from the Victories and Defeats of Twenty Years of Title VII,” 37 Rutgers Law Review 895.Google Scholar
CURRAN, Barbara A. (1977) The Legal Needs of the Public. Chicago: American Bar Foundation.Google Scholar
DONOHUE, John J., and Peter, SIEGELMAN (1991) “The Changing Nature of Employment Discrimination Litigation,” Forthcoming, Stanford Law Review.Google Scholar
EISENBERG, Theodore (1989) “Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases,” 77 Georgetown Law Journal 1567.Google Scholar
EISENBERG, Theodore and Stewart J., SCHWAB (1989) “What Shapes Perceptions of the Federal Court System?” 56 University of Chicago Law Review 501.Google Scholar
EQUAL EMPLOYMENT ADVISORY COUNCIL (1990) Memorandum to William K. Slate, Director, Federal Courts Study Committee, RE: Tentative Recommendations of the Federal Courts Study Committee (December 22, 1989), Washington, DC.: Unpublished.Google Scholar
FEILD, Hubert, and William, HOLLEY (1982) “The Relationship of Performance Appraisal System Characteristics to Verdicts in Selected Employment Discrimination Cases,” 25 Academy of Management Journal 392.Google Scholar
FRANKLIN, Marc (1980) “Winners and Losers and Why: A Study of Defamation Litigation, 1980 American Bar Foundation Research Journal 455.Google Scholar
FRANKLIN, Marc (1981) “Suing the Media for Libel: A Litigation Study” 1981 American Bar Foundation Research Journal 797.CrossRefGoogle Scholar
GOLD, Michael (1985) “Griggs'Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform,” 7 Industrial Relations Law Journal 429.Google Scholar
GOOD, Irving John (1968) “Fallacies, Statistical,” International Encyclopedia of the Social Sciences, Volume 5: 292. New York: Macmillan Company & Free Press.Google Scholar
GREENE, William (1990a) Econometric Analysis. New York: Macmillan & Co.Google Scholar
GREENE, William (1990b) LIMDEP Manual New York: LIMDEP.Google Scholar
HECKMAN, James (1979) “Sample Selection Bias as a Specification Error,” 47 Econometrica 153.Google Scholar
HOGG, Robert, and Elliot, TANIS (1977) Probability and Statistical Inference. New York: Mcmillan & Co.Google Scholar
HUGHES, James, and Edward, SNYDER (1989) “Policy Analysis of Medical Malpractice Reforms: What Can We Learn from Claims Data?” 7 Journal of Business and Economic Statistics 423.Google Scholar
KRITZER, Herbert (1986) “Adjudication to Settlement: Shading in the Gray,” 70 Judicature 161.Google Scholar
KUHN, Peter (1987) “Sex Discrimination in Labor Markets: The Role of Statistical Evidence,” 77 American Economic Review 567.Google Scholar
LEONARD, Jonathan (1984) “Antidiscrimination or Reverse Discrimination: The Impact of Changing Demographics, Title VII, and Affirmative Action on Productivity,” 19 Journal of Human Resources 145.Google Scholar
LLEWELLYN, Karl (1960) The Common Law Tradition: Deciding Appeals. Boston: Little, Brown.Google Scholar
MILLER, Richard, and Austin, SARAT (1980–81) “Grievances, Claims and Disputes: Assessing the Adversary Culture,” 15 Law & Society Review 525.Google Scholar
MILLS, Heidi (1981) “On the Use of Equal Employment Laws,” 24 Pacific Sociological Review 196.Google Scholar
OLSON, Susan (1989) “Studying Federal District Courts Through Published Cases.” Unpublished.Google Scholar
PRIEST, George, and Benjamin, KLEIN (1984) “The Selection of Disputes for Litigation,” 13 Journal of Legal Studies 1.Google Scholar
POSNER, Richard (1985) The Federal Courts: Crisis and Reform. Cambridge, MA: Harvard University Press.Google Scholar
REYNOLDS, W. L., and W. M., RICHMAN (1978) “The Non-precedential Precedent—Limited Publication and No-Citation Rules in the United States Court of Appeals,” 78 Colum. L. Rev. 1167.Google Scholar
SCHLEI, Barbara, and Grossman, Paul (1979) Employment Discrimination Law (1979 Supplement). Washington, DC: Bureau of National Affairs.Google Scholar
SCHWAB, Stewart J., and Theodore, EISENBERG (1990) “The Influence of Judicial Background on Settling and Winning Cases and a Study of the Disputing Pyramid.” Unpublished, Cornell University Law School.Google Scholar
SCHULTZ, Vicki (1990) “Telling Stories About Women and Work: Judicial Interpretatations of Sex Segregation in the Workplace in Title VII Cases Raising the ‘Lack of Interest’ Argument,” 103 Harvard Law Review 1749.Google Scholar
SIEGELMAN, Peter (1991) “An Economic Analysis of Employment Discrimination Litigation.” Ph.D. Diss., Yale University.Google Scholar
SONGER, Donald (1988) “Nonpublication in the U.S. District Courts: Official Criteria versus Inferences from Appellate Review,” 50 Journal of Politics 206.Google Scholar
STIDHAM, Ronald, CARP, R. A., and C. K., ROWLAND (1983) “Women's Rights Before the Federal District Courts, 1971–77,” 11 American Politics Quarterly 205.Google Scholar
STOLZENBERG, Ross, and Daniel, RELLES (1990) “Theory Testing in a World of Constrained Research Design: The Significance of Heckman's Censored Sampling Bias Correction for Nonexperimental Research,” 18 Sociological Methods and Research 595.Google Scholar

Cases Cited

Flowers v. Crouch-Walker Corp., 552 F.2d 1277, (7th Cir. 1977).Google Scholar
Griggs v. Duke Power, 401 U.S. 424 (1971).Google Scholar
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976).Google Scholar
McDonnell Douglas v. Green, 411 U.S. 792 (1972).Google Scholar
Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989).Google Scholar
Presley-Robinson v. Fredric (July 27, 1979), 7th Circ. Slip Opinion No. 77 C 3511.Google Scholar
Smith v. Board of School Commissioners of Mobile County, 655 F. Supp. 939 (1987).Google Scholar

Statutes Cited

Civil Rights Act, 42 U.S.C. 2000 (1964).Google Scholar
Equal Pay Act, 29 U.S.C. 201 (1963).Google Scholar
Rehabilitation Act, 29 U.S.C. 791 et seq. (1973).CrossRefGoogle Scholar
Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. (1967).Google Scholar