The National Law Journal

Volume 23, Number 26

The National Law Journal

Monday, February 19, 2001

Podium

KEEPING MUM KILLS PRECEDENTS

David R. Fine

Special to The National Law Journal

Mr. Fine is a senior associate in the Harrisburg, Pa., office of Kirkpatrick & Lockhart.

YOU ARE researching a critical issue for an appellate brief and you find a case that is absolutely parallel to yours and from the same court. "Eureka!" you cry. Then you see the local rule that forbids use of unpublished opinions as precedent. Your perfect decision, rendered by three wise federal appellate judges (wise because they agree with you), might just as well not exist.
Judge Richard S. Arnold of the U.S. Court of Appeals for the 8th Circuit took on this anomaly directly in his August 2000 decision in Anastasoff v. U.S., 223 F.3d 898.

There, a taxpayer sought a refund and made an argument squarely rejected in an unpublished 1992 opinion. In an opinion that had almost nothing to say about tax law but a great deal about judicial power and the history of precedent in the law, Judge Arnold and his colleagues told Ms. Anastasoff that she-and the panel-were bound by the earlier decision.
The local rule unconstitutionally expanded the scope of the Art. III judicial power. Ms. Anastasoff's case seemed destined for the Supreme Court, but it met its demise not with a bang but a whimper. The Internal Revenue Service changed its policy and paid Ms. Anastasoff her refund. The 8th Circuit vacated the panel decision as moot. Judge Arnold's constitutional analysis, which will surely be resurrected in some other case, was right. But unpublished-so-nonprecedential rules invite abuse and inconsistency.

It's human nature

That's less an indictment of the judiciary than a recognition of human nature. Strict application of the law sometimes brings about unsettling results. That's why a jury considering the case of a mother who has killed her child's molester might absorb the damning evidence and still acquit. Are judges any less tempted? I have no doubt that most of them swallow hard and apply the law. But what if there were a mechanism to decide that case in what seems the more just-if not justifiable-way and to designate it as sui generis so that it does not foul the jurisprudential stream?
The harm would be considerable. The law should be predictable. To the individual litigant, it matters not at all if the opinion in his case becomes precedent. (I cannot imagine Mrs. Palsgraf in her later years sitting her grandchildren on her lap and telling them, proudly, that, even though she lost, Chief Judge Cardozo used her train station accident to establish the limits of a tortfeasor's duty.) To litigants, their case is the most important one pending and they want a predicable result.

Uneven results

In addition, the unpublished-so-nonprecedential rules invite a sometimes-remarkably-uneven application of the law.
For example, in U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000), the 9th Circuit announced that it was publishing its opinion on a technical sentencing issue because the circuit had never addressed the issue in a published-and therefore precedential-opinion. Instead, over three years, different panels of the court had issued 20 unpublished opinions that took three different approaches to the same issue.
One justification for the rules is that many cases do not involve unique facts or explore the frontiers of jurisprudence. Accordingly, they do not merit space in overcrowded law books. Because they would not be widely available, they should not be considered precedent.
At one time, that was a good argument, but that time is long past. It ignores the many new means of disseminating judicial opinions. Consider the Internet. Every federal appeals court now has a Web site that posts (and usually archives) published opinions. Most lawyers have access to the Internet (or can gain that access at a nominal cost).
Moreover, the addition of more opinions to Lexis and Westlaw would not likely increase their costs in any significant way. And, of course, courts can require that counsel attach copies of unpublished opinions to briefs that cite them. The point is that nowadays, a decision that an opinion should not be published in a book hardly means that the opinion will be hidden away in a dusty filing drawer in the clerk's office.
Inaccessibility is no longer a viable excuse for the unpublished-so-nonprecedential rules. With their rationale stripped away, they remain an invitation to abuse and an impediment to legal uniformity.