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Since 1976, every federal appellate court has adopted rules that limit the publication of opinions.1 As a result, only a minority of the federal courts of appeals publish even half of their decisions on the merits.2 Although withholding opinions from publication is meant to reduce or eliminate their applicability to litigation, the large body of unpublished decisions creates a variety of incentives for those litigants who have unusual access to these opinions to use them. The policies reflected by the publication plans do not anticipate these sorts of incentives. Although the rules adopted by the courts of appeals attempt to curtail litigant use of unpublished opinions, the controls do not work because these mechanisms restrict only certain uses usually of the most overt kind such as citation. Not only do the appellate rules fail to destroy the usefulness of unpublished opinions, they also exacerbate the advantages that the selective publication plans give frequent litigants. This article discusses the courts' adoption of the limited publication plans and analyzes the methods used by the courts to discourage the use of unpublished opinions. It also discusses the results of a survey conducted to determine if, and how, government litigants some

The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals