Standard Defenses of Non-Publication

• It is clear to every lawyer and judge that many written opinions do not warrant publication.

• Opinions that are designated for publication will involve cases that have broader importance.

• Unlimited proliferation of published opinions constitutes a burden and a threat to a cohesive body of law.

• A tentative determination can be made at a very early stage the process of decision-making that the case is one that does not warrant a published opinion.

• Given the workload in the courts today, the capacity of judges and lawyers to research, produce, and assimilate the substance of judicial opinions is dangerously near its limits. In some systems, those limits may already have been exceeded.

• Publication of opinions burdens the work of writing opinions. The court should be able to disclose its reasoning to the parties without a judge having to acquit his legal scholarship in every opinion.

• The production of opinions places intolerable burdens on judges and their staffs.

• The burden on the lawyer is commensurate with that of the judge in terms of research.

• Too much opinion-writing undermines collegiality. The collegial process of an appellate court requires consideration by all members of the court of all opinions of that court, whether or not they are to be published. However the burden is substantially lighter when a brief opinion is written in order to dispose of the issues raised with reasons stated, for the benefit of the litigants and their counsel, and when the opinion is not intended for publication. The time saved can better be utilized for consideration and resolution of critical issues. This avoids erosion of collegiality.

• The logistical burden for the courts and practitioners has become dangerously heavy. Posting, maintenance, shelving, and librarian services of bound volumes result in time and money costs disproportionate to the value of the materials.

• Nonpublished opinions can be short, do not need to cite all the law, and deal mainly with facts as they relate to law.

• The burden on the publishing industry to continue to supply complete reporting services at prices that are tolerable appears to be beyond their capacity.

• As the number of opinions grows, law finding devices inevitably proliferate and expand. This inevitably creates a loss of precision and sophistication.

• The public has no necessary interest in most decisions. The underlying legal issue, rather than the case or controversy, must be a public interest and that interest must be a continuing nature and not merely transitory. Public interest thus must be distinguished from public curiosity.

• The impact of nonpublished opinions is minimized because they cannot be cited.