[UPDATED] The latest Third Circuit case statistics seemed to reveal a stunning transformation, but actually the data is useless

UPDATE: The data described in this post, while presumably accurate, is spectacularly misleading. The apparent cause of the problem is that the AOC reports the number of cases decided after oral argument, by published opinion, and reversing — not the number of oral arguments, published opinions, and reversals. That becomes a problem when, after one oral argument, a court issues one published opinion reversing over 500 cases. That’s what happened in March 2017 in In re: Fosamax. My original post illustrates how, in this unusual situation, the AOC’s data-reporting methodology renders important data worse than useless.


Astonishing changes in the Third Circuit’s handling of cases occurred in 2017.

Two years ago, I wrote what I consider one of most significant posts I’ve done on this blog. The gist was clear from the title: “Guess which circuit holds the few oral arguments. (Hint: it’s the same one that issues the fewest published opinions.” I described how the Third Circuit’s rate of oral-argument, publication, and reversal all had plummeted between 2009 and 2014.

I didn’t post an update here last year, but the basic picture remained the same, with the Third Circuit still holding fewer arguments and publishing fewer opinions than any other circuit, even ones that decided far fewer cases.

Two days ago, the federal courts released last year’s court statistics.* I looked at them today, and my jaw is on the floor.

Compared to the prior year, the percentage of cases in which the Third Circuit held oral argument more than tripled.

The percentage of cases in which the Third Circuit published its opinion more than quadrupled.

The percentage of case in which the Third Circuit reversed more than quintupled.

Just look at these graphs:

The court held 208 oral arguments in 2016; it held 814 in 2017.


The court published 154 of its opinions in 2016–in 2017, it published 741.


Have I conveyed my astonishment?

If you’re wondering if this reflects a national trend, at least at first glance I’d say no. Nationally, the argument rate and the publication rate ticked up just a couple percentage points last year, while the reversal rate was up just over 1%. I’d guess CA3 alone accounts for a good chunk of those small increases.

Here are some more numbers that jumped out at me:

  • The total number of appeals commenced in the Third Circuit in 2017 was down 18.7% from the year before. Nationally, appeals commenced were down 16.3%.
  • Criminal cases became a much bigger part of the Third Circuit’s caseload last year: 24.9% of all terminated cases, vs. 13.6% the year before. Nationally, it was about 20% both years.
  • The circuit’s reversal rate in criminal cases didn’t change much– 4.7% in 2017 vs. 4.2% the year before.
  • Get this: the circuit’s reversal rate in private civil appeals went from 11% in 2016 to 56.7% in 2017!

There you have it. If you’re wondering how to explain all this, well, so am I.

UPDATE: I have serious doubts about the accuracy of these statistics. The one that’s easiest to check is the number of published opinions. As best I can tell from online searches, the court published about 182 decisions between 9/30/16 and 9/30/17 — a very far cry from the 741 reported, and much closer to the 154 it published the year before. And, come to think of it, I summarize every published opinion as it’s written, and I’m pretty sure I would have noticed if the court had gone from 3 or 4 published opinions a week to 14 or 15.

So, all of these numbers should be viewed with considerable skepticism until confirmed.


* In this post, “last year” and “2017” is shorthand for the 12-month period ending September 30, 2017. “2016” is shorthand for the 12 month’s ending the same day in 2016.

[The oral-argument data cited in this post are from AOC table B-10. The reversal data come from B-5, and opinion-publishing data come from B-12.]