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October 29, 2008

Unpublished Opinions in Federal Courts: An Interview with David Cleveland

David Cleveland is an Assistant Professor of Law at Nova Southeastern University, Shepard Broad Law Center. Professor Cleveland has recently written two articles on the history, value, and future of unpublished opinions in the federal courts: Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J.App.Prac. & Process ___ (2009)[SSRN] and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. ___ (2009)[SSRN]. Recognizing that the topic is one that interests law librarians, Professor Cleveland took time out of his busy schedule for this interview. [JH]

Q:  You have two forthcoming articles now on the issue of unpublished opinions in the federal circuit courts, is the issuance of unpublished opinions a common occurrence?

A: Extremely common. While issuing unpublished opinions was initially an experimental solution to the problem of increasing case loads, it’s grown to the point where roughly 84% of all federal appeals are decided by unpublished opinion. Because these cases are typically treated as non-precedential and up until recently were unciteable, the law itself is altered. Imagine the First Amendment pared down to 16%. Could you find your way with a map that only showed 16% of the area it covers? This is the essential problem with unpublished opinions.

Q:  What specifically are we talking about when we say “unpublished opinions”?

A:  “Unpublished opinions” refers to court opinions that the court withholds from formal publication in the official reporter. In the era before official reporters and universal publication of opinions, from about the thirteenth century to the start of the twentieth century, many court opinions went unpublished. These opinions could still be brought to the court’s attention, though, as evidence of the common law and precedent. Then, for much of the twentieth century, commercial publishers endeavored to publish every appellate opinion, which proved expensive, both from the perspective of the judicial time investment in writing opinions and in the storing, indexing, and researching those opinions. So an attempt was made to limit those expenses by creating a class of opinions that would be designated “unpublished.” The federal circuit courts for example enacted rules limiting the citation of these unpublished opinions and (in most circuits) limiting their precedential value.

Q:  What was the reasoning behind this rule change?

A:  The limited publication plans, and the attending lack of citation and precedent accorded unpublished opinions, is, in my opinion, far greater than a mere rule change. It was an unprecedented occurrence in the history of the common law, if you’ll forgive the pun. Never before had opinions been marked, at the time of decision, as not part of the common law. For the first time in seven centuries of common law, courts were saying, “not only can you not rely upon this decision as precedent, you can’t even tell us that we did it,” which was the meaning of most circuits’ limited publication rules. But in answer to your question, the reasoning was that when the federal circuits’ experiment with unpublished opinions began in the mid-1970s, the goal was to alleviate the workload problem caused by rapidly expanding caseloads. The courts sought to reduce the costs of writing, storing, and researching case law by reducing the number of published opinions. These unpublished opinions would then be non-citable and likely treated as non-precedential. These practices, non-publication, non-citation, and non-precedent formed a sort of three-legged stool on which the practice was based. But the underlying purpose was to minimize publication costs, not to intentionally remove cases from the body of precedent or the courts’ view.

Q:  But unpublished opinions aren’t still treated this way are they?

A:  No, they aren’t. In fact, the entire system has collapsed; two of the three legs of the stool have been knocked out. Unpublished opinions are now routinely published both commercially and on the courts’ own websites. Increasingly, courts are permitting citation of these decisions because they do have value in showing the court what has been done before (and what an appellate court might do on appeal). Both of these practices occurred because the market for these unpublished opinions remained strong and the legal publishing technology resolved many of the storage and searching issues almost at the same time these rules went into place. Studies of practicing lawyers and judges show that they value courts’ opinions, even when unpublished, for their predictive power about what courts will do in the future. The common law concept of precedent is just so well-ingrained in both the public and legal system that litigants, lawyers, and judges want to know what has been done before. In addition, lawyers report that unpublished cases are now nearly universally reported and tend to be retrievable by the same kinds of searches they typically do.

Q:  Isn’t the term “unpublished opinion” a bit of a misnomer, then?

A:  Absolutely. Federal court opinions, in particular, are published not only in commercial online resources but even in print, such as West’s Federal Appendix. And they are increasingly published in word searchable format on the courts’ own websites as the courts implement the E-Government Act of 2002. In addition to near universal publication, these decisions are increasingly citeable.

Q:  Speaking of citeability, doesn’t the new Federal Rule of Appellate Procedure 32.1 resolve the problem of unpublished opinions’ uncertain status?

A:  Unfortunately, no. FRAP 32.1 is a big step in the right direction by making all decisions, whether designated as published or unpublished, freely citeable in the federal circuits. Now the courts’ prior decision can at least be brought to their attention. But like the committee that initially proposed the limited publication rules, the FRAP takes no position on the issue of whether such opinions have any precedential value. So the final, and most critical issue – that is, whether these unpublished decisions are precedent – remains unresolved. 
Q:  And you believe that they are?

A:  I believe that they are and always have been precedential on the same terms as any other court opinion. The time has come that we again recognize them as such. The precedential value of an opinion to a later case is for the court in the later case to decide. Scholars have been questioning the Constitutionality, propriety, and practicality of denying some decisions precedential value since the early days of the federal courts’ unpublication practice. It’s a practice that flies in the face of how common law works and causes inequities of Constitutional dimension. My forthcoming article, Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J.App.Prac. & Process ___ (2009)[SSRN], examines the history of publication and precedent as related concepts and sets forth the many problems with denying some decisions precedential status. These problems include Constitutional issues such as the question of whether U.S. courts have the authority to issue non-precedential opinions and whether issuing those opinions violates due process and equal protection. They also include legal and lay concepts of precedent and justice, which place an inherent value on prior decisions. What I find most troubling is that the federal courts began, and have continued, this unpublication practice without ever examining or justifying the practice of declaring some decisions non-precedential. The 1973 committee that first proposed limited citation rules considered whether decisions could be declared non-precedential. Rather than examine the issue more closely or take a position on the issue, they declared it a “morass of jurisprudence” and assumed that if the decisions were not published and not citeable, they would naturally be treated as not precedent. The federal courts took that a step further and most actual wrote provisions in the rules that denied these unpublished opinions precedential value. And now, the rest of the system has fallen apart, but the uncertain status of these opinions in the body of common law remains.

Q:  Do you believe that this issue will be resolved?

A:  It has to be. A one-legged stool doesn’t stand for long – and the denial of precedent was the weakest leg of the three to begin with. The opinions technically designated “unpublished,” now published and citeable, will be sought after, cited, and relied upon. Practice alone should undermine the precedent restriction. How can a court look at a prior decision it made and say straight-faced to a litigant, “we decided this identical case last month, but we’re going to decide yours the opposite way”? The goals of the limited publication scheme have largely been accomplished by improved technology and further savings can be realized by the issuance of short opinions – even shorter and more direct than the present unpublished opinions, which often span several pages.

Q:  It’s in the hands of practicing lawyers then to urge these unpublished opinions upon courts and on courts to write shorter opinions?

A:  Not entirely. Practitioners will urge that these decisions be followed and short form opinions in truly unremarkable cases would help. But the practice of denying some opinions precedential value is fundamentally flawed and constitutionally infirm. These issues have never been addressed by the rule makers though they have been discussed by scholars and litigants over the years.

Q:  What about the idea that some cases make law and should be published, and other cases, which only apply law, need not be published?

A:  That notion is plainly mistaken. Every case, even one exactly the same as a prior case adds to the body of precedent. It tells the reader that the rule announced is a current one, a robust one, and one that was not the product of an errant judge or panel. It is these “piles” of cases, as Karl Llewellyn called them, that make up the common law. But most cases differ from other cases in at least some small way, and it is the decision as to whether these differences change the outcome that tells us the contours of the law. It is this process of repeated application of the law that Lord Coke viewed as giving weight and ever greater precision to the law. All decisions have some precedential value in establishing the state of the law. In addition, the idea that a court can determine at the time of decision (or under the present system at the time of filing) whether a case would be of precedential value in a future case makes no sense. The value of court’s decision as precedent is a question for a later court considering whether to apply, distinguish, or overrule the precedent. And on top of these jurisprudential problems, there is a practical problem that this ex ante determination hasn’t worked very well in practice. Courts frequently issue unpublished opinions in cases that are not the easy cases, involving the mere application of the law cases. Many such opinions contain concurrences or dissents, are heard by en banc panels, and are reversed on appeal or upheld by opinions that are dissented from. All of which suggests that these are far from the easy cases and that these are decisions that expand or contract the law and ought to be precedent.

Q:  You also identify some significant constitutional implications, right?

A:  Yes, for years now, scholars, and even one federal circuit court, have been expressed concerns about the constitutionality of the limited publication rules, especially their denial of precedent to some opinions. The single federal circuit court to rule the practice unconstitutional did so on the ground that denying some opinions precedent exceeded the federal courts “judicial power” as granted by Article III of the Constitution. This conclusion was based on the idea that the Framers, both Federalist and Anti-Federalist, understood the concept of precedent to be at the heart of judicial power. While the opinion was vacated on technical grounds (the dispute had become moot), the core question of whether the circuit courts have exceeded their judicial power by removing precedent by rule remains. Other challenges, based on Due Process and Equal Protection, note that removal of precedent from certain cases removes a protection fundamental in the common law by allowing for the disparate treatment of similarly situated parties. In a system where unpublished opinions are not precedent, a court could decide a case differently today than yesterday without distinguishing or overruling the prior case. My article, Overturning the Last Stone, notes several cases where this has happened. In one instance, the Ninth Circuit decided twenty cases involved the identical issue of law by unpublished opinion and various panels of the circuit were split on how to apply the law. Eleven panels favored a certain application, six panels held the opposite, and three panels remanded to the district court. Clearly, these were not easy applications of settled law, and the Ninth Circuit only discovered the issue when it ordered counsel in the twenty-first case to violate its non-citation rule and brief the court on the unpublished opinions on the issue. Many more such disparate treatment situations likely exist. Hopefully, now that the citation ban has been lifted, they will be brought to light.

Q: Has the Supreme Court addressed this issue in any way?

A: The Court granted certiorari in a single case, shortly after the publication plans went into effect in the mid-1970s, but it did not reach the issue in its decision. Over the intervening thirty years, it has denied cert on the issue over thirty times. While the Court has not directly taken on the constitutional question, it has dealt with unpublished opinions tangentially. First, it has cited to unpublished opinions freely and taken cert in cases where the decision below was unpublished. Second, the court has granted cert in cases based on a split in the circuits where a published opinion was in conflict with an unpublished opinion. Because the Court does not take cases for mere error correction but to resolve inconsistencies in the governing law of the various circuits, taking these cases indicates that in the Court’s view, unpublished opinions are law. Finally, there is a single case, in which the full Court speaks directly to the unpublished opinion issue. In a case called Commissioner v. McCoy, the Court reviews and reverses the circuit court’s opinion below, “regardless of any assumed lack of precedential effect of a ruling that is unpublished.” The Supreme Court has never expressly reviewed the propriety of limited publication and precedent rules, but neither has it ever accepted the proposition that these unpublished decisions may be denied precedential value. My second article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev.___ (2009)[SSRN], examines the Court’s actions in this regard and the substance of the many petitions for review of the unpublication system. The issue of whether unpublished opinions can properly be denied precedential value is a fundamental question that should not be left to eventual rule change or practical erosion of the denial of precedent. The Supreme Court should step in and resolve this.

Q:  Given the numerous denials, is Supreme Court review likely?

A:  It’s difficult to say. There are so many cases vying for the Court’s attention each term and so few cases the Court can actually hear. But in Draining the Morass, I identify a number of promising statements by current members of the Court. For example, Justice Stevens has long been a critic of the limited publication and precedent rules; he spoke out against the practice as early as 1976 and as recently as 2006 expressed concern that unpublished opinions were being used to make decisions that would otherwise be difficult to justify. Justices Scalia and Thomas have espoused the same historical view of precedent relied upon by the judicial power discussion noted above. And, Chief Justice Roberts and Justice Alito both served on the committee that created and approved FRAP 32.1, so whatever they might hold on the issue, they are at least aware that it is a concern and one that FRAP 32.1 did not address. These and the other Justices have commented on the problem of volume in the federal courts and the problems inherent in the unpublication solution. That’s certainly no guarantee that cert will be granted. Nonetheless, the Justices are certainly aware that this is an important issue.

Q: Until the Court decides to review the issue, what is the present status of these unpublished cases and what does that mean for the law librarian and other legal researchers?

A:  In terms of access, federal appellate opinions labeled “unpublished” are actually published in the Federal Appendix as well as online by major commercial publishers and the courts themselves. These opinions are available in much the same manner as published opinions, being placed in the same database and subject to the same word searches. For example, a search in the Sixth Circuit database on “covenants not to compete” brings up both published and unpublished cases and unpublished cases found in this manner. Similarly, unpublished cases are indexed using the same key number or similar system as published cases. A researcher doing a systematic search on an issue will encounter unpublished decisions right alongside published decisions. In terms of use, these unpublished decisions are citeable, if issued on or after January 1, 2007, based on the new Federal Rule of Appellate Procedure 32.1. Citation of unpublished opinions older than that and the precedential value of these cases are subject to the individual circuit rules, which vary. Going forward, these opinions will be increasingly available and increasingly referenced. This should increase their value as precedents simply by virtue of being prior court actions that, once brought to a court’s attention, will have to be followed, distinguished, or overruled. This process is likely to be slow, uneven, and uncertain. Whether the Supreme Court will resolve the uncertainty about these unpublished opinions’ precedential value in a more direct, even manner, well, we’ll simply have to see what the future holds.