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Studying the Iceberg from its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases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

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 Through a direct comparison of published and unpublished cases, we show that the two actually do differ in significant and predictable ways.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.

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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

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