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Almost without exception, scholars have tested theories of judicial behavior by relying on published case decisions. Though understandable given the inaccessibility of unpublished cases, this focus means that scholars may be drawing conclusions regarding judicial behavior that do not accurately describe the motivational forces behind all judicial decisions. This study employed the attitudinal model of judicial behavior to empirically test whether published judicial opinions are representative of all opinions in litigation challenging the U.S. Forest Service. Results indicate that the effects of ideological preferences are different in published and unpublished opinions issued by appellate judges: judges' decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions. At the district court level, judges did not follow their ideological preferences in either published or unpublished opinions and there was no difference between judges' decisions in published and unpublished opinions. This research supports the contention that the process of judicial decision making in the courts of appeals differs between published and unpublished opinions and that scholars should use caution in drawing conclusions from examinations of published opinions alone.
Keele et al. (Sun,) studied this question.