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TABLE A2

REGRESSIONESTIMATES: 1974 SUPREME COURT TERM

Notes: See Table A1.

Notes: See notes to Table A1.

yearIn. this appendix we discuss how we derived estimates of the number of precedents.

appealsprecedents. Method I involved use of data collected by the Administrative Officeof the U.S. Courts. Method II involved the use of data collected by our own researchassistants. For reasons to be explained, we used Method II as the basis for derivingestimates of annual investment that were then used to calculate depreciation

ratesfor courtof appeals precedents.

Method I. A fundamental problem in determining the number of precedent pro- ducedeach year is translating decisions into precedents. As shown in Table B1, it makesa great deal of difference whether we treat as precedents all terminations, only

contestedterminations, only terminations where there is a (published) judicial opin- ion,or perhaps only some subset of the last. Since only a decision in which an opinion

isissued is likely to be cited in a subsequent decision, it seems clearly appropriate to limitthe pool of precedents to such decisions. But two questions remain: (1) Should

opinionsnot signed by one of the judges) are extremely brief (sometimes only a sentenceannouncing a bare conclusion)? And (2) what are we to do for years before

1966,when no statistics of opinions, signed or unsigned, were kept?

Thesequestions turn out to be related. As shown in Table B1, the number of signedopinions per court of appeals judge67 was highly stable over the period (1966- 1974)for which the number of signed opinions is reported. (The average for the

availabledata on the number of judges per year, as we have done in the first column

ofTable B2 ("MethodI")back to 1892, the year in which the federal courts of appeals wereestablished; but there can be no certainty that the estimates are accurate for periodsremote from the 1966-1974 period on the basis of which the projections were

made. Moreover, the number of per curiam (unsigned)opinions per judge does not possess a comparable stability. As shown in Table B1 there has been a dramatic growthrate in the number of per curiam opinions since 1966 (20 per cent per year), butit is unlikely that the growth rate was as high in earlier years, for which we have

no data.68 Thus the data in Table B1 cannot be used to project the number of

unsigned opinions in earlier years.

Thereare several alternative methods of dealing with the per curiam opinions: (1) Exclude them altogether on the grounds that they are (as we are about to see)

67Thereis a problemin measuringthe numberof judges,due to the fact that thereis no formalretirementof federaljudges.At age 70theybecome"seniorjudges,"freeto reducetheir workload,to zeroif theylike, withoutsufferinganyreductionin pay;buttheyalsomayif they wishcontinueto hearcases,andmostdoso, to a greaterorlesserextent.Wetranslatednumber of seniorinto numberof active-judgeequivalentsby meansof a regressionequationbasedon the ratioof the numberof signedopinionswrittenby seniorjudgesto the numberof signed opinionswrittenby activejudges. The numberof judgesused in TableB1 to calculatethe numberof signedopinionsper judge is the sum of the active judges and the active-judge

equivalentsin each year.

68An annualgrowthrateof 20 per centwouldimplya totalof only27 percuriamsin 1948, almostcertainlya grossunderestimate(see note 69, infra).

1. That is, terminations after oral argument or submission on briefs without argument. Source: 1966-1973 Admin. Office of the U.S. Courts, Ann. Reps.

' Calendar year for Method II, 1947-1974.

2 Term and method of computation explained in text.

Sources: Method I and Our Subject-Matter Classes: 1940-1973 Admin. Office of the U.S. Courts, Ann. Reps. Method II: see pp. 505-06 infra.

probably of much less precedential significance than signed opinions and that we have no satisfactory estimate of their number before 1966. (2) Estimate their number on the basis of the unrealistic assumption of a constant 20 per cent annual growth rate,69 but appropriately weight them to reflect their lesser precedential significance.

69 A partial check on the accuracy of using the 1966-1973 average growth rate of 20 per cent to estimate the number of unsigned opinions in earlier years is possible by using the samples of signed and unsigned opinions that we obtained for purposes of compiling Table B3 infra. The results, presented in the table below, suggest that this estimation procedure would grossly underestimate the number of unsigned in years prior to about 1964:

' Includes certain per curiam opinions, as explained in note 10.

Sources: Total: Letter from the office of the Clerk of the U.S. Supreme Court, 1975 (1927-1929 and 1939-1947); Our Subject-Matter Classes: Harv. L. Rev. (November issue) (1930-1938 and 1949-1973).

signed-opinionestimate, which probablyunderestimatesthe true growthrate because it excludesper curiamopinions;and a signed-equivalentestimate.71

MethodII. We have reasonableconfidencein estimatesbasedon the procedure describedabove for the recentpast. But for purposesof measuringdepreciation rates,we needto be ableto computeinvestmentovera longperiodof time, and we lack confidencethat projectingthe numberof opinionsbackto 1892on the basisof the ratio of opinionsto judges in the period 1966-1973will produceestimatesof sufficientaccuracyfor ourpurpose.Accordingly,we undertookto estimatefromthe courtreportsthemselves(FederalReporterand FederalReporter,Second)the number of courtof appealsopinionshandeddown each yearsince 1892.The resulting estimates,whichappearin the columnsheadedMethodII in TableB2, areprobably moreaccurateforthe period1892-1965thanthosebasedon MethodI. Weaknessesof

71 A further problem is that per curiams appear to depreciate at a more rapid rate than signed opinions. An analysis of the 1959 sample of courts of appeals opinions (see Table B3) reveals that the mean number of citations in 1965-1969 (six to 10 years after the decision) was 1.061 for the 147 signed opinions compared to .183 for the 104 per curiams or a ratio of unsigned to signed of .172. This is less than the ratio of .206 for the first five years after the opinion, suggesting a more rapid depreciation rate for per curiams. But we have not attempted to make any adjustment for the apparent differences in depreciation rates.

Method II are that it excludes memorandum opinions, which are very short per curiam opinions that have little, but not zero, precedenfial significance, and that it includes other per curiam opinions without separate indication of their number. Nonetheless, we have based our estimates of depreciation rates in the text on invest-

74 Priorto 1927, when the full impact of the Judiciary Act was first felt, the Court'sobligatory jurisdiction was a good deal broader, and in consequence it decided more cases, but presumably these were on average less important and so not readily comparable with its post-1927 output. See Gerhard Casper & Richard A. Posner, supra note 28, at 342-43.

In 1963 the editors of the Harvard Law Review began to include in the category of signed opinions certain per curiams that because of their length seem to be the equivalent of signed opinions; since such opinions are likely to have as much, or almost as much, precedential significance as signed opinions, they have been included in Table B4 for purposes of our

subject-matter classifications. But in computing the total number of Supreme Court precedents, we excluded per curiam opinions because we have no information on them for the period before 1948. Between 1948 and 1974 they exhibited no growth. See Gerhard Casper & Richard A. Posner, The Workload of the Supreme Court, n. 17, at 75 (1976). If their growth was flat in the 1927-1948 period as well, then our exclusion of them would not affect our estimates of Supreme Court investment.

Note finally that the Supreme Court investment data are approximatelyon a fiscal-yearbasis, since the Court's terms (summer adjournment-summer adjournment) coincide roughly with fiscal years (July 1-June 30). Supreme Court investment data were converted to a calendar-year basis (for example, by defining the 1973 calendar year as the average of the 1973 and 1974 terms) to correspond to the citation data.