Looking at Common Justifications

The justification for limited publication rest on three premises:

• First, there is no need to publish all opinions.

• Second, full publication is costly.

• Third, judges can effectively determine when an opinion needs to be published.

• In truth, all decisions make law, or at least contribute to the process, for each shows how courts actually resolve disputes.

• Even cumulative opinions have value. They can suggest how firm a line of precedent may be, or indicate problems in the application of articulated precedent, or even show the convergence of a rule from the expectations of those to whom it is addressed. Thus, value can be in found publishing any opinion.

• The premature decision not to publish entails significant costs: the actual writing of an opinion helps judges develop their thoughts on the topic. If an opinion in support of a decision simply "will not write," the conscientious judge may be forced to reconsider his initial decision.

• The discipline of providing written reasons in an opinion often reveals weaknesses or inconsistencies in the intended decision that may compel a change in the rationale or even in the ultimate result.

• Even if judges conscientiously reach correct results, an opinion that does not disclosed its reasoning is unsatisfactory. Justice must not only be done, it must appear to be done.

• Early decisions not to publish force the court to predict, early in the judicial process, that its opinion "will not make law." But this prediction process is by no means perfect.

• Limited publication reduces judicial responsibility by removing the constraints that stare decisis places upon the court.

• Limiting publication does not necessarily limit the propagation of error.

• Cases that contain a dissent or concurrences are, by definition, controversial; the court disagrees either about the result to be reached or about the method used to reach it. Decisions with separate opinions, by definition, should be published.

• Similarly, separate opinions also perform an important corrective function, for they criticize the result and reasoning of the majority, appealing for correction by a higher court, a future court, or the legislature. This too merits publication.

• Reversals in routine cases also reflect a continuing battle over the correct legal standard to apply. The refusal to publish reversals thus deprives the judiciary of clarifications of precedent and instructions as to interpretation.

• In truth, reversals are quite likely to create law. If they are not published, they run the likelihood of creating a suppressed precedent.

• Judicial responsibility also may be diminished when courts use the non-publication list as a repository for troublesome cases presenting issues the court does not wish to address in public.

• Existing data provide no support for the hypothesis that limiting publication enhances judicial productivity.

• The putative benefits of swift or justice and savings of judicial effort that are often cited to justify non-publication in fact produce suppression of precedent and diminished quality.