Unpublished Does Not Mean Unimportant

We tolerate a series of seemingly irreconcilable ad hoc judgments in the jury system because that system has its own itself-contained values that our democratic system has embraced. But appellate adjudication performs a different function and creates different expectations.

Publication plans generally seek to publish only cases of general precedential value. But many unpublished opinions contain legal analyses that are important to future litigants and to the public at large.

Unpublished decisions do not reduce the amount of law; they create an additional, less accessible body of law that nonetheless must be consulted.

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

OPERATIONAL REALITIES

Unpublished opinions are sometimes accompanied by a dissent. Recognizing this contradiction, three circuits (the 5^th, the 6^th, and the 9th) have specifically provided that an opinion accompanied by a dissent should be published in some circumstances.

The impact of non-publication rules on opinions where there is a dissent is perverse: In practice, dissenting judges rarely insist on publication, on the rationale that it is better to have an opinion banished from existence than to be bound by a bad precedent in the future.

Similarly, judges sometimes agree not to dissent if it is agreed that an opinion will remain unpublished.

State Courts of Appeal have already cited Federal District Court opinions that were not published in the bound Federal Supplement but were only available online.

Different federal courts give different weight to unpublished opinions as precedent, thus establishing different standards of justice in the federal courts.

Some courts prepare and circulate indices of unpublished opinions. Some federal courts of appeals distribute their unpublished opinions to all district judges in the circuit. But inconsistent practices, as well as unequal attention to notices by individual judges, creates unequal application of the law.

Additional unpublished opinions may exist because some circuits do not provide unpublished opinions to LEXIS and Westlaw.

The refusal to publish opinions creates the possibility of an underground stream of precedent: unpublished opinions relying on other unpublished opinions.

The "do not cite" rules employed by some circuits do far greater violence to the concept of precedent then the "do not publish" rules; the former rules place off-limits the very stuff of precedent -- the reasoning of the court and the explanation of why it reached the result it did.

The collective memory of judges on a particular court is no substitute for the serious restraints the "do not cite" rule imposes on the advocate. That collective memory is probably illusory: it is too much to expect that many judges are constantly aware of why the court disposed of the hundreds of appeals presented each year and to be constantly faithful to how previous appeals were decided.

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.

There are number of ways, apart from formal citation in a brief or memorandum, that unpublished opinions are brought to a court's attention and can affect judgments:

-- A judge may know about an unpublished opinion which resolves an appeal from his court.

-- A trial judge is likely to remember how the appeals court ruled on an issue he decided, whether or not the decision was published.

-- Judges may feel bound to decide subsequent cases in accordance with prior decisions of the appellate court, whether those decisions are published, cited, or not.

-- Trial judges can learn about unpublished cases from fellow judges, or in private conversations with knowledgeable individuals.

-- Unpublished opinions can and have come to judges anonymously.

UNPUBLISHED CASES SOMETIMES ARE INDISPENSABLE

There are cases in which it appears absolutely essential for a party to be able to cite an unpublished opinion to protect its own interests. For example, an unpublished decision of the Court of Appeals which quiets title to land. If the land is subsequently sold, the buyer should be able to rely on the unpublished decision if sued for possession of the property.

Similarly, an attorney searching title to a tract of land should be able to treat and unpublished decision, which quiets title in someone within the chain of title, as more than a letter to a pair of litigants. He would surely include a reference to the unpublished decision in a title opinion. Should the attorney's title opinion ever become the subject of litigation, the case could not be disposed of without reference to the unpublished opinion.

An attorney who cites an unpublished opinion to court may be subject to professional discipline; conversely an attorney who knows about a line of unpublished cases, but advises clients to act in accordance with the published decisions, may be guilty of malpractice.

If experience showed that unpublished rulings truly added nothing to law, lawyers, would only research published opinions.

For dispute-settling purposes, unpublished opinions are fully law. They may be used for res judicata, law of the case, and collateral estoppel purposes in the same manner as published opinions.

LARGER CONSIDERATIONS

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 case.

Opinions facilitate the discovery of conflicts in the law.

Opinions also permit readers to view the law in historical development and trace its development and impact on society.