Should Courts Issue Unpublished Opinions?

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5 Responses

  1. Andrew says:

    First: you kind of blur two distinct ideas together when you talk about “a court . . . issu[ing] a decision that it believes is not adequately researched or articulated”. When drafting precedential opinions, courts become nervous about language. It’s not that they haven’t thought about (and researched) the right way to decide the case, as much as they haven’t thought about the exact way to describe the principle on which they have decided it, and they fear that it might get taken out of context or start to stand for something different than they way they meant it. An opinion might be “adequately articulated” to dispose of the facts before the court, but not every possible set of facts. I have seen at least one en banc call made where the calling judge agreed with the outcome of the case, but objected to the way the principle used to describe it was articulated.

    Second: “I think that unpublished non-precedential opinions should be abolished. If a case involves any issue that is unresolved in any given court, the panel should address it with a fully-researched and reasoned opinion.” But that’s kind of a non-sequitur. It is unfortunate that so many issues of first impression are decided in mem dispos, and I don’t think I’ll attempt to defend that. But then the solution is this: if there is no binding precedent on point, the court should write an opinion. But, as a former clerk, you know well that often “the law” (or, at least, the abstract principle of law) is perfectly clear (or has been articulated just fine four or five times before), and all that matters in the case before you is that the court below had sufficient evidence to support its factual determination to avoid clear error. Why force judges (and their clerks!) to go through recitations of the facts only to show that there was no clear error below? A mem dispo allows you to dispense with the facts and procedural history–information without which the opinion would be useless as precedent.

    And why clutter the federal reporter with those? The fact that we now search using databases doesn’t avoid clutter–more opinions (and longer opinions) means more search results we have to wade through, more false positives because our database searches are (deliberately) overbroad, and a greater risk of overlooking something important. The fact that we don’t have to print these in books doesn’t make a glut of publications entirely unproblematic.

    As a current clerk, I can tell you that I too have become frustrated when the only things I can find on point are mem dispos. And I can only imagine the frustration of repeat litigants who get different outcomes under the same facts.

  2. Litigator says:

    I don’t have a problem with courts judiciously choosing to give “unpublished” (which really just means nonprecedential) status to certain opinions.

    But I think it may actually be unconstitutional for them to prohibit citation to those cases as persuasive authority. From the Noerr-Pennington line of cases, we know that the 1st Amendment right to petition includes some sort of right to pursue nonfrivolous arguments in court.

    Directing a court’s attention to that court’s own prior opinions essentially petitions for the court to follow certain reasoning (just as with any other nonbinding opinion — such as an out-of-jurisdiction case, a law review article, or an amicus brief.)

    In addition, it petitions the court, for reasons of fairness and equity, to treat the current litigant the same as the past litigant.

  3. LawTom says:

    That’s an interesting argument on Noerr-Pennington. Some jurisdictions allow you to cite unpublished decisions, but you must provide copies of the cases to opposing counsel and the court. The cases are treated as having only persuasive, not precedential authority. That seems to me much closer to acceptable.

    Perhaps there should be a rule against unpublished decisions where a verdict or lower court ruling is reversed or altered in any way. After all, in such cases the law was evidently not clear to at least one participant in the proceedings, usually including the lower court.

  4. David says:

    The N-P argument really only comes into play if the court denies a meritorious motion for relief from the rule prohibiting citation rather than penalizing a litigant for ignoring the rule in the first place without seeking any relief from the court.

    When I was clerking the only time the issue came up was in whether to cite to an unpublished appellate opinion (from another circuit, however) in which the issue was addressed in a hypothetical posed at oral argument, but then distinguished by the panel authoring the unpublished decision.

  5. Karen says:

    The longstanding controversy over unpublished opinions cannot be resolved here, but it can be noted that in general, the reasoning in unpublished opinions is not subsequently tested in the crucible of official legal discourse. There is an element of irony, therefore, when an unpublished opinion strikes expert testimony for want of peer review and publication.