Non-publication

Non-publication of opinions, or Unpublished opinions, are those decisions of courts that are not available for citation as precedent because the judges making the opinion deem the case as having less precedential value.

In the system of common law, each judicial decision becomes part of the body of law used in future decisions. However, some courts reserve certain decisions, leaving them "unpublished", and thus not available for citation in future cases. It has been argued that non-publication helps stem the problem of too much written material creating too little new law.^[1] Specifically, the number of federal appeals filed annually grew from 23,200 to 33,360 between 1980 and 1985,^[2] and 55,000 federal appeals were filed in 2000.^[3]

Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in a reporter.^[4] "Unpublished" federal appellate decisions are published in the Federal Appendix. From 2000 to 2008, the U.S. Court of Appeals for the 4th Circuit had the highest rate of non-publication (92%), and more than 85% of the decisions in the 3rd Circuit, 5th Circuit, 9th Circuit, and 11th Circuit went unpublished.^[5] Depublication is the power of a court to make a previously published order or opinion unpublished. The California Supreme Court may depublish opinions of the California Courts of Appeal.^[6][7]

It has been argued that non-publication encourages expedient, not careful, consideration as the basis for judgment, and constitutes an invitation to error, incompetence, corruption and tyranny.^[8]

History

In 1964, the Judicial Conference of the United States recommended that federal appellate courts publish only those decisions "which are of general precedential value."^[9] Since 1976, every federal appellate court has adopted rules limiting the publication of opinions. Most federal appellate courts publish less than half of their decisions on the merits.^[10] As of the year 2004, some 80% of United States Courts of Appeals decisions are unpublished.^[11] In Anastasoff v. United States, the U.S. Court of Appeals for the 8th Circuit struck down non-publication, but the decision was later declared moot.^[12] In Hart v. Massanari, the U.S. Court of Appeals for the 9th Circuit upheld non-publication as constitutional.^[13]

On September 20, 2005 the Judicial Conference of the United States voted to approve rule 32.1^[14] of the Federal Rules of Appellate Procedure, allowing citation of unpublished decisions issued after January 1, 2007. Judge Samuel Anthony Alito, Jr. (since appointed to the Supreme Court of the United States) was then the chair of this committee. More than 500 public comments were received from supporters and opponents of the new rule.^[15]

Controversy

The issue of unpublished decisions has been described as the most controversial to be faced by the Advisory Committee on the Federal Rules of Appellate Procedure in the 1990s and 2000s.^[16] There is active debate on the fairness issues raised by non-publication, and the utility of non-publication in the light of computerization of court records. It has been argued that the behavior of judges and litigants indicates that "unpublished" does not mean "unimportant," and that technology has affected the storage costs, research costs and intellectual costs associated with publication of opinions.^[17] A "shadow body of law" has developed, leading to concerns about unfair use and access.^[18] It has been argued that the "hidden" conflict between published and unpublished decisions is hard to square with fundamental principles of equal justice.^[19] Unpublished decisions have also been criticized as an abdication of responsibility,^[20] in that it frees judges from the responsibility of preparing publication-worthy opinions in every case.^[21] The idea that unpublished opinions would be treated by courts as if they didn't exist because they were relatively inaccessible to many lawyers, were thought to involve only well-established legal principles, and were otherwise unsuitable for the precedential status usually accorded to decisions of the federal appellate courts has been described as a legal fiction.^[22]

References

1. ^ Martin, Boyce F. Jr. (1999), In Defense of Unpublished Opinions, 60, Ohio St. L.J., pp. 177, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ohslj60&section=12 
2. ^ Weaver, George M. (1987-1988), Precedential Value of Unpublished Judicial Opinions, The, 39, Mercer L. Rev., pp. 477, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/mercer39&section=29 
3. ^ Hannon, Michael (2001), Closer Look at Unpublished Opinions in the United States Courts of Appeals, A, 3, J. App. Prac. & Process, pp. 199, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/jappp3&section=17 
4. ^ On Google books: [1], [2], and [3]
5. ^ Aaron S. Bayer (August 24, 2009), Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal 
6. ^ http://www.gmsr.com/article/Depublish%20or%20Perish%20-%20Why%20Depublication%20is%20Good%20for%20the%20California%20Judicial%20System.PDF
7. ^ California Rules of Court, Rule 8.1125
8. ^ http://www.nonpublication.com/
9. ^ Arnold, Richard S. (1999), Unpublished Opinions: A Comment, 1, J. App. Prac. & Process, pp. 219, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/jappp1&section=21 
10. ^ Lauren K. Robel (Apr., 1989), The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87, Michigan Law Review, pp. 940–962, JSTOR 1289226 
11. ^ Leonidas Ralph Mecham, Admin. Office of the U.S. Courts, Judicial Business of United States Courts, Supplemental Table S-3, 2004 Annual Report of the Director, p. 39.
12. ^ Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).
13. ^ Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001).
14. ^ Rule 32.1 Citing Judicial Dispositions, Federal Rules of Appellate Procedure
15. ^ Schiltz, Patrick J. (2005-2006), Citation of Unpublished Opinions in the Federal Courts of Appeals, 74, Fordham L. Rev., pp. 23, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/flr74&section=11 
16. ^ Schiltz, Patrick J. (2005), Much Ado about Little: Explaining the Sturm und Drang over the Citation of Unpublished Opinions, 62, Wash. & Lee L. Rev., pp. 1429, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/waslee62&section=39 
17. ^ Shuldberg, Kirt (1997), Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85, Cal. L. Rev., pp. 541, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/calr85&section=24 
18. ^ Carpenter, Charles E. Jr. (1998-1999), No-Citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy, The, 50, S. C. L. Rev., pp. 235, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/sclr50&section=12 
19. ^ Gardner, James N. (1975), Ninth Circuit's Unpublished Opinions: Denial of Equal Justice, 61, A.B.A. J., pp. 1224, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/abaj61&section=222 
20. ^ Fox, Lawrence J. (2003-2004), Those Unpublished Opinions: An Appropriate Expedience or an Abdication of Responsibility, 32, Hofstra L. Rev., pp. 1215, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/hoflr32&section=47 
21. ^ Pearson, Martha Dragi (2003-2004), Citation of Unpublished Opinions as Precedent, 55, Hastings L.J., pp. 1235, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/hastlj55&section=39 
22. ^ Brian P. Brooks (Spring, 2002), Publishing Unpublished Opinions: A Review of the Federal Appendix, The Green Bag, https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=5+Green+Bag+2d+259&srctype=smi&srcid=3B15&key=6012c7d72cd979b22dbea4a8dd79ad7c 

External links

• NonPublication.com - Issue group seeking rule changes, Committee for the Rule of Law
• A Librarian’s Guide to Unpublished Judicial Opinions