About a decade ago, this blog found that Sixth Circuit judges cited the Second, Seventh, and Ninth Circuits more often than any other circuit. When we controlled for the number of opinions, we found that opinions from the First, Seventh, Tenth and D.C. Circuits were three times more likely to be cited than opinions from other circuits. After our recent post showing that some circuits issue a far higher percentage of published opinions than others, we decided to take another look at what circuits are the most influential in Sixth Circuit opinions over the last three years. The results were surprising.
Despite issuing the lowest number of published opinions per judge, the Third Circuit was cited more than any other circuit. The Second Circuit and D.C. Circuits were next, and then the First and Tenth Circuits. Then there is a big drop off in citations to the Seventh and Eight Circuits, and another large drop to the Fourth, Fifth, Ninth, and Eleventh Circuits. The raw numbers are striking, even without controlling for the total number of opinions. Opinions from the Sixth Circuit cited over ten times more Third and Second Circuit opinions as those from the Fourth, Fifth, Ninth, or Eleventh Circuits. This represents a significant change—intentionally or not, judges on the Sixth Circuit avoid citing those four circuits far more than they did a decade ago. And the judges are citing their “preferred” circuits far more often than before.
When you look at the citations per published opinion, the numbers are even more interesting. Although the Third and Second Circuits publish the least number of decisions per judge, choosing to leave most decisions unpublished, those opinions have an outsized influence. The D.C. Circuit was not far behind the Second Circuit on this metric, with the Tenth and First Circuits lagging behind. The other Circuits were cited far less often. It appears that a published opinion by the Third Circuit is forty times more likely to be cited than a similar published Fifth or Ninth Circuit decision, and eighteen times more than a decision from the Fourth and Eleventh Circuits. (I had to run those searches many times before I believed the differences were that large.) The Ninth Circuit has long had an unfortunate reputation, but it was surprising how far citations to the Fifth Circuit had dropped off.
Comparing this data with that from our previous post, the choice to publish more opinions appears to have a very modest effect on the influence wielded by a Circuit. Indeed, the two circuits that published the least opinions per judge, just seven per year, ended up being the most cited by the Sixth Circuit–the Second and Third Circuits publish less and yet are cited more. (The Sixth Circuit likewise publishes comparatively few decisions compared to its unpublished decisions. We’ll take a look at its influence in other circuits in the future.)
This is not the only way to measure influence, of course. There are many different ways, including surveys of federal judges and citations in Supreme Court opinions. And, of course, the individual reputation of the authoring judge can be far more important than the circuit. That said, looking through the decisions, I did not see any particular reason why the Third Circuit is cited so much–the decisions cited were across a wide variety of subjects and for many different reasons. All else being equal, those of us practicing in the Sixth Circuit might heed the direction the circuit itself is taking when choosing which circuits to cite.