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Where have all the good cases gone?

Four weeks and counting.

That’s how long it has been since the 4th U.S. Circuit Court of Appeals has delivered an opinion that it deemed worthy of publication. Granted, the Richmond-based federal appellate court is known for being stingier with published opinions than any other circuit court, but this is the longest stretch without a published opinion in recent memory.

Since Sept. 2, the court has released over 350 opinions. Only four of those have been designated “published” under court rules. Even the unpublished opinions, which we regularly review, have been primarily the cursory “short-form” treatments generated by court staff attorneys.

The 4th Circuit’s Chief Circuit Mediator William T. Howell, retired chief judge of the South Carolina Court of Appeals, can’t necessarily confirm that all the “good cases” are being siphoned off the docket for resolution by the court’s four-person mediation staff.

It’s true that all civil, counseled cases must be considered for mediation under court rules. Since the court mediation program began in 1995, court staff has maintained a pretty consistent rate of settling about one-third of the cases it takes off the docket, Howell reported.

But “cases on appeal have gone down dramatically over the last three years,” Howell said. Program statistics show an overall decline in cases from 2001 through 2007, with a slight uptick in the last few months.

Either clients are giving up more easily, or they are finding ways to settle their differences without pursuing a federal appeal.

Things may be looking up for court-watchers, as the court is sitting in Richmond this week. The court has scheduled over 60 cases for oral argument, including an en banc rehearing tomorrow in Richmond Medical Center for Women v. Herring, the legal challenge to Virginia’s partial-birth abortion statute.

By Deborah Elkins

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