Non-Publication Erodes Stare Decisis

OVERVIEW

• If justice is to be dispensed even-handedly, similar cases must be decided similarly.

• Ad hoc jury decisions that yield unexplained verdicts reflect the self-contained values our jury system embraces. But appellate adjudication performs a different function and creates different expectations. The core function of appellate courts is to assure that legal principles derived from the Constitution, statutes and, in the case of state courts, the common law are applied correctly and consistently.

• Stare Decisis requires that a prior decision be followed in subsequent cases unless it is distinguished or overruled,. The application of the doctrine usually turns on a determination of the identity between two cases -- a determination that cannot be made unless the facts and reasoning of the prior case are known.

• A published opinion enhances predictability. Even if the opinion and does no more than restate existing legal doctrine, it to show how the doctrine applies to different facts. Publication thus increases certainty by increasing the stock of precedents.

• First, 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.

• Put a different way: a court can ignore one inconvenient precedent; it rarely ignores a dozen.

• Second, later cases help flesh out a precedent, and help to make it more understandable.

• Third, 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.

• Fourth, publication furthers an important institutional goal: maintaining the appearance that justice has been done. Publication is a signal to litigants and observers that court has nothing tied, that the quality of its work in a case is open for public inspection.

• The core values of Stare Decisis are stability, certainty, predictability, consistency, and fidelity to authority.

STARE DECISIS AS A QUALITY CONTROL MECHANISM

• Stare Decisis, at its heart, is a quality control mechanism, raising all error for discussion and correction.

• Stare Decisis guarantees a consistent level of quality, consistency or reasoning in the law and application of the law.

• Stare Decisis guarantees that all judges will meet the standards of the most conscientious of their brethren. As such, it raises the quality of law and judicial functions.

• Public awareness of Stare Decisis encourages the continual inspection of the law and participation in the legal process by the public.

THE EROSION OF STARE DECISIS

• Conversely, erosion of Stare Decisis creates chaos. It robs even experienced lawyers of the ability to predict with reasonable certainty the outcome of litigation. This inevitably raises the cost of the legal system and lowers its legitimacy.

• Erosion of Stare Decisis creates random results that inundate the appellate courts. Citation of unpublished cases, conversely, would permit lower courts (and potential litigants themselves) to have access to precedents that would clearly decide cases or head off litigation.

• Stare Decisis is not threatened by a proliferation of lawsuits: We have more lawsuits and more appellate rulings these days because our country has more people and more laws and, for those reasons, we have more judges and more lawsuits.

• Non-publication diminishes Stare Decisis twice: first, the decision itself is freed from the responsibility to reason within the full view. Second, an increment of precedent is rendered unusable.

OPERATIONAL REALITIES

• Once an "unpublished" opinion is included in a computer database, it is de facto published.

• A lawyer cannot meet his obligations to his client if relevant precedent, as he understands it, is kept from him.

• It is equally unfair to gag a litigant who wants to advise a Court of Appeal that the issue which he now presents for adjudication has already been passed on, and with what results.

• When a court undertakes to write an opinion to explain why it decided the case as it did, it creates a reasonable expectation, under the respect we accord to precedent, that similar issues will be treated judicially in the same manner in the future.

• The `precedential importance' of an opinion cannot be predetermined by its author. Rather, the attorney wishing to rely on the opinion in a subsequent matter is in a better position to decide whether the opinion is worth citing.

THE IMPACT OF NO-CITATION RULES ON STARE DECISIS

• "Do not cite" rules place off limits the very stuff of precedent: the reasoning of the court and the explanation of why it reached the results it did.

• "Do not cite " rules seem to be a statement by a court that the reasons for its actions have no meaning or value. But if we do not know why a court acts, our adjudicatory system will be reduced to a series of irreconcilable ad hoc judgments.

• "Do not cite" rules create a serious risk that similar cases will be decided dissimilarly.

• The appellate courts can hardly claim to be carrying out this critical function when they prohibit parties to appeals from citing precedent that is directly relevant to the issues they are presenting for judicial resolution.

• Stare Decisis cannot operate as a workable doctrine as long the courts, while adjudicating sets of identical facts, are able to reach directly contrary results on diametrically opposed legal theories, by the simple expedient of publishing one set of results but not the other.