- 1. From time immemorial,
the test of fair judgment has been the willingness of a court to apply the
same rules consistently.
- 2. Our legal system is
based on the principle that each of us is allowed our day in court. Secret
opinions destroy this principle because our day in court is no longer
- 3. Selected publication
policies of the courts imply that every court of appeal opinion is
presumptively unworthy of publication, unless such opinion meets an
arbitrary standard that it (1) establishes a new rule of law or alters or
modifies an existing rule, 2) involves a legal issue of continuing public
interest, or (3) criticizes existing law.
PUBLICATION PROCEDURES HAVE BEEN
- 1. The transition to a
policy that comes close to uniform non-publication has been so gradual
that very few lawyers, let alone members of the general public, have any
idea that this destruction of the appellate system of law has taken place.
- 2. The movement toward
limited publication is often traced back at least to the 1971 Annual
Report by the Federal
- 3. About 80 percent of
federal appellate courts' opinions were unpublished in 2014
- 4. Over 90 percent of
the opinions of the California
appellate courts (93 percent) were unpublished in 2014
- 5. Changes in reporting
procedures have been put in place throughout the United States
unilaterally, only in the last four decades, without any public or
PUBLICATION IS ESSENTIAL TO A LEGAL
SYSTEM BASED ON PRECEDENT
- 1. The notion and that
rulings that are inconsistent with precedent should not be published goes
against a fundamental reality: decisions that are inconsistent with the
weight of precedent are, by definition, law-making. History cannot be
changed, revised, rewritten or air-brushed. It is what it is. By
definition, precedent - that which came before - is history.
- 2. The weight of
precedent on a point of law hardens it, making it more difficult to
overturn. The sheer number of affirmations allow attorneys to rely on the
stability of a doctrine with greater confidence.
- 3. Put a different way:
a court may ignore one precedent, but rarely a dozen.
- 4. Later cases help
flesh out a precedent, and help to make it more understandable.
- 5. The sheer
accumulation of a number of seemingly routine decisions on a particular
point of law may suggest to the courts, legal practitioners, scholars, the
legislature, or the public that problems exist in this area. This may set
in motion reform.
- 6. Publication furthers
an important institutional goal: maintaining the appearance that justice
has been done. Publication is a signal to litigants and observers that the
court has nothing to hide, that the quality of its work in a case is open
for public inspection.
CITIZENS IN A DEMOCRACY ARE ENTITLED
TO CONSISTENT TREATMENT FROM THE COURTS
- 1. The courts are not
works of art to be protected from the profane and the trivial. Nor are
they debating or learned societies that exist to enhance the professional
satisfaction of the judges. They are a public resource.
- 2. Explanation is
fundamental to our system of justice.
- 3. The signed opinion
assigns responsibility. The author of a bad opinion cannot hide behind the
shield of anonymity; blame or praise worthiness is there for all to see.
- 4. Similarly situated
parties are entitled to receive like treatment in the courts. Where there
is no assurance that an opinion will be published, no litigant can be
certain that his case will be decided by the Court of Appeal in accordance
with principles of law followed in similar cases.
- 5. If an appeals court
unilaterally changes public law by a decision and then marks that opinions
"not for publication," it effectively rules that its changes do
not apply to all similar circumstances, but instead, apply only to the
parties – creating private law.
- 6. An unreported
decision means that judgment may be completely different from one person
to another even if the facts are exactly the same. By declaring itself
unbound by precedent and uncommitted to the future use of precedent, the
court makes law for one person only. This is, de facto, a judicial bill of attainder.
OPERATIONAL REALITIES OF
- 1. Nearly all circuits
use staff attorneys or staff law clerks to help screen cases for full or
summary appellate procedure. The screening decision inevitably coincides
to a great extent with the publication decision. Thus, the reliance upon
staff attorneys combined with a predisposition toward non-publication
seriously diminishes the responsibility that the judge bears for his decisions.
- 2. Because law clerk
influence is likely to be the greatest in less important cases, which are
not argued and will not be published, diminished quality, once again, will
be most prevalent there.
- 3. In practice,
publication decisions, once made, are usually cast in concrete, and a
party seeking reconsideration is perceived as adverse and meets solid
resistance in the court.
- 4. Selective publication
undermines fundamental legal functions by limiting the Supreme Court's
ability to correct inconsistent appellate decisions where there is no
petition for hearing.
- 5. Litigants whose
situation is complicated by an unpublished opinion can count on the
Supreme Court for relief only in theory. High courts take only a a
few cases, and even fewer that have not been published (in part, because
unpublished cases do not “count”). For most litigants, then, a court of
appeal is the court of last resort.
- 6. Non-publication
raises the genuine possibility that a subsequent panel, unaware of a prior
result, might reach a contrary result, creating a conflict in the law.
- 7. If there is only one
circuit court opinion on issue, another court might feel justified in
eaching a different result. However, if several panels or circuits have
spoken on different variations of the issue, it will be the rare court
which will take a different path. Thus, more published opinions make the
law more stable. And conversely, more unpublished opinions destabilize the
- 8. Non-publication also
creates the possibility that a court may decline to publish an opinion to
avoid calling attention to the fact that its opinion conflicts with a
- 9. Judges appear to be
caught in a serious dilemma: if they pay no attention to their unpublished
decisions, they risk inconsistency; if they consult those opinions, they
appear to be using them as precedent.
- 10. No citation rules
significantly diminish the possibility of review based upon conflict among
the circuits. The very notion of a conflict is theoretically attenuated. Can
it be said, for instance, that conflict exists between two circuit courts
that have come to opposite results on a single issue when each one insists
that its determination is not precedential?
- 11. An attorney seeking
a writ of certiorari is less likely
to know of the unpublished law of other circuits and therefore, will be
less able to draw the Supreme Court's attention to the existence of a
- 12. Similarly, the fact
that unpublished opinions are typically not as thorough or as elaborate as
reported opinions makes it more difficult for the Supreme Court to
determine exactly what the lower court has done and accept the case for
IMPACT OF NON-PUBLICATION INSIDE THE
- 1. Those who choose what
opinions to publish may consciously decide to suppress an opinion they
know to be significant enough to publish either to avoid review by a
higher court, to escape criticism for a controversial decision, or even to
allow a court to get away with making a decision contrary to prevailing
- 2. Unpublished opinions
inevitably contribute to conflicts of decision. Unpublished opinions may
conflict with other unpublished opinions; worse, existing conflicts
between unpublished opinions, and prior, published opinions are
considerably more difficult to justify.
- 3. The refusal to publish
undercuts the ability of appellate divisions to cross check on each
court's acumen. This further erodes quality-control.
- 4. Many unpublished
opinions have been found to be of dreadful quality, clearly falling below
minimal standards of legal scholarship and consistency.
- 5. The poor writing
quality or unnecessary brevity of most unpublished opinions makes it
difficult to identify examples of inconsistency or suppressed precedent.
Lack of publication thus compounds inequitable treatment under the law.
- 6. When errors are not
brought to public attention via publication, courts may continue to decide
low-profile cases wrongly for years.
- 7. Inequality of
publication rates within appellate divisions in larger states further
compounds the essential unfairness of the basic practice of
nonpublication. In some California
appellate divisions, fewer than 3% of cases are published. This raises
fundamental questions about whether the court is fulfilling its
- 8. The criteria for
publication cannot help but be applied unevenly. Cases that qualify for
publication remained unpublished.
- 9. Similarly, procedures
for requesting publication or depublication.create capricious results. Even
when a court is inclined to permit publication (an uncommon occurrence), institutional
litigants have better practical access to unpublished opinions, even when online.The
parties frequently do not have an interest in seeking publication.
- 10. Depublication rules
have been used by the California Supreme Court and by the appellate courts
in order to silence criticism of their own rules by lower courts.
- 1. There is no
difference between non-publication of judicial decisions and any other
instance of unjustified secrecy in government.
- 2. The argument that
public interest must be distinguished from public curiosity is without
value: it reflects a disregard for the people's right and ability to
decide for themselves what aspects of their government's activities are
worthy of their attention.
- 3. There is no such
thing as unnecessary public curiosity with regard to the courts: unlike
matters of national security or police intelligence, the courts have
nothing to hide.
- 4. What goes on in the
courts is public business and therefore, unpublished appellate opinions --
whether cut-and-dried or not -- which contain any matters that arguably
provide insight into the judicial process should be freely citable, and
should -- the same as any other acts of government -- be subject to open
public scrutiny and discussion.
- 5. Wide publication
would reduce, if not eliminate, the wasted time, money, and human effort
that is expended daily in pursuing, administering, and terminating
fruitless appeals, whose points of law already have been decided in prior
- 6. If a court is not
willing to stand by a decision as a valid precedent for all, then the
decision should not be made or should be regarded as unenforceable.
- 7. The lasting authority
of a decision depends largely on the quality of its reasoning, which can
be evaluated only by reading the opinion
- 1. Inefficiency of
judicial operations is certainly not a desirable objective; it may,
however, be a price worth paying if it buys or helps to buy individual
- 2. Inequities in
publication consist of concerns about fundamental First Amendment rights including
petitioning for redress of grievances, and about equal access to the
courts - which involve both the procedural and the substantive due process
- 3. Inequities in
publication also involve the equal protection provision of the Fourteenth
- 4. Inequities in
publication present a challenge to the constitutional strictures that
prescribe the duty of adjudication and demand a separation of powers
between the legislative and judicial branches of government.
- 5. The Supreme Court of United States
has held repeatedly that the due process clauses of the fifth and
fourteenth amendments to the United States Constitution prohibit vague law
because vague law is like secret law to which most of us have no access or
- 6. Many legal doctrines
illustrate the importance of the law being knowable and accessible: for
example, the void for vagueness doctrine, limitations on retroactive
legislation, restrictions on retroactive overruling of judicial decisions,
and requirements regarding prison law libraries.
- 7. An unpublished
appellate decision may create new law de
facto, but it is unexposed to the scrutiny of the public or the
legislature. Moreover, the refusal to publish sends a message that the
public in general and other potentially interested parties will never be
affected by the law promulgated in this situation – it doesn’t count.
- 8. An ever-growing body
of decisional law is invaluable asset and the essence of a stable system
that renders consistent judgments. New democracies throughout the world
specifically bemoan a lack of such precedents. Totalitarian regimes, by
definition, act unilaterally, are bound by no precedents, and are
OPINIONS ARE NECESSARY, EVEN IN
- 1. It is false to
condition non-publication on the assumption that most decisions only serve
a dispute-settling function among two parties. Readers can compare and
evaluate the majority opinion alongside any concurring or dissenting opinions
to determine precisely what the court decided, and how far its decision
may extend in future cases.
- 2. Opinions facilitate
the discovery of conflicts in the law.
- 3. Opinions also permit
readers to view the law's historical development and trace its impact on
- 4. Opinions that create
inconsistencies must be considered law-making opinions; by definition,
they depart noticeably from the established course of decisions. Such
opinion should always be published.
- 5. Unpublished opinions,
because they cannot be cited, generally will not receive critical
commentary from the bench, the bar, scholars, and the public for the
obvious reason that they do not count. Thus, they go unnoticed. There's
little value or incentive in commenting upon an opinion that is not
IMPACT ON THE LEGAL SYSTEM IN
- 1. Selective publication
creates inequality of access to case law, even that on-line, by making pertinent and
unpublished opinions more easily accessed by institutional and specialized
- 2. Selective publication
deprives trial judges, lawyers, litigants, and members of society of
- 3. Selective publication
decreases trial court compliance with the law, thus contributing to
increased appellate litigation.
- 4. The loss of precedent
increases the volume of litigation because results are unpredictable.
Random court results drive many parties into alternative methods of
- 5. Non-publication
guarantees inequity in the legal establishment. It produces two classes of
lawyers: the uninitiated ordinary practitioner who keeps up with the
advance sheets and knows only what he reads there, and the
specialist-insider who collects unpublished opinions in his field as well,
and therefore possesses a special insight into the thinking of the
intermediate appellate courts.
- 6. Widespread
uncertainty in the law erodes professional competence and the confidence
of lawyers in the quality of their work. This, in turn, feeds misconduct,
which is tolerated until it becomes the norm.
- 7. Moreover, unequal
access to unpublished decisions creates a "grapevine" among
appellate judges and their research attorneys, and among attorneys who
practice solely in one particular area of the law, whereby earlier
unpublished opinions are relied on expressly or implicitly.
- 8. Nonpublication
subverts one of the most important forces in the development of the law:
scholarly commentary. One of the most potent analytical tools in the hands
of a legal commentator is an abundance of decisional law from which he can
extract trends in the law, based on an assessment of how the rule of law has
been judicially articulated, or how it may be operating in application.
- 9. Most important of
all, selective publication contributes to popular distrust of the courts.
QUESTIONS TO PONDER
- 1. How can we have the
equal protection of the law if the courts have no institutional memory of
the manner in which the law is applied in similar cases?
- 2. How can we be certain
that our judges correctly and honestly state the law, if their decisions
are not put out to the people for criticism?
- 3. How can we ask our
legislators to correct the law if we cannot know how the law is actually
been applied by our courts?
- 4. What effect does our
right to equal protection of the law have if law can be applied to one
person without immediately causing others who would otherwise be affected
to complain on that person's behalf when the rule used is illegal,
unconstitutional, or unjust?
- 5. If experience shows
that unpublished rulings truly add nothing to law, why do lawyers and
judges continue to research unpublished opinions in preparing their