62 Wash. & Lee L. Rev. 1553
                         Washington and Lee Law Review
                                  Fall, 2005
 
             Symposium: Have We Ceased to Be a Common Law Country?
 A Conversation on Unpublished, Depublished, Withdrawn and Per Curiam Opinions
                    Panel I: The Controversy and the Rules
 
 *1553 TAKE A LETTER, YOUR HONOR: OUTING THE JUDICIAL EPISTEMOLOGY OF HART V.
                                   MASSANARI
 
                            Penelope Pether [FNa1]

 


                                       
Copyright (c) 2005 Washington and Lee University School of Law; Penelope      
                                    Pether


 


    Things fall apart; the center cannot hold; 
    Mere anarchy is loosed upon the world, 
    . . . everywhere 
    The ceremony of innocence is drowned; 
    The best lack all conviction, while the worst 
    Are full of passionate intensity. [FN1] 
    Trading . . . not just [on] the contemptuous demonstration that powerful  
people don't have to be acute or right, but even more, the contemptuous       
demonstration . . . of how obtuseness itself arms the powerful against their  
enemies. . . . [FN2] 
    Beyond the communication of the sentence, what took place at this         
interview was never known. [FN3]
                                       
                             *1554 I. Introduction
  These epigraphs have a dramatic tone. They are also unabashedly literary.   
Those who take the position that the concern expressed by some judges, [FN4]  
most practicing litigators, [FN5] and many scholars [FN6] about unpublication 
and the other practices of private judging that are proliferating in the      
United States courts is "[m]uch ado about little" [FN7] might find them       
melodramatic on the one hand, trivial texts-because they are, like unpublished
opinions, "not law"-on the other. [FN8]

  But then, as scholars of literature know, comedy can be a serious business. 
As Tim Nelson writes, "[m]ost good comedies contain potentially tragic scenes.
. . . [I]n Much Ado About Nothing, a guiltless woman is repudiated and        
disgraced at the altar," [FN9] a trope the bleak potential of which is plumbed
in Shakespeare's problem play Measure for Measure. [FN10] It is a trope that  
teaches *1555 us that the banality so characteristic of soap opera-that       
iteration of melodrama that is a staple of what one might call the            
entertainment arm of the military-industrial complex-can also be the stuff of 
the tragic, of great and often painful significance in the everyday life of   
ordinary people. Which is to say that things may not be as trivial as they may
be made to seem.

  In Inequitable Injunctions: The Scandal of Private Judging in the U.S.      
Courts, [FN11] I argued that the private history of contemporary              
institutionalized unpublication of judicial opinions began as a judicial      
backlash against the desegregation mandate of Brown v. Board of Education.    
[FN12] I then mapped the frequently overlapping practices of unpublication,   
depublication, and stipulated withdrawal of judicial opinions, [FN13] which   
have structurally subordinating effects on a range of marginalized groups     
[FN14] and exact a toll on the rule of law. [FN15] Finally, I argued that the 
institutionalization of these practices since the 1960s [FN16] had a          
corrupting effect on the national judicial habitus. [FN17]

  This Article responds to some recent developments in various federal        
judicial institutions [FN18] regarding the modest proposal for reform of      
institutionalized unpublication. [FN19] It focuses on both a key institutional
actor and a seminal legal text which stand in opposition to that reform       
initiative: Judge Kozinski of the United States Court of Appeals for the Ninth
Circuit and his opinion in Hart v. Massanari. [FN20] If the debate about      
unpublication is a contest about two things that I take very seriously indeed,
epistemology and the *1556 constitutive law of the land that is the most      
powerful in the contemporary world, then this Article's task is to suggest    
that the stakes symbolized by the proposed amendment, [FN21] an amendment     
until recently apparently doomed to fail, [FN22] are extraordinarily high. In 
short, it suggests why we should all take very seriously what we can learn    
from this paradoxically fierce skirmish over a smallpiece of procedural       
delegated legislation. Until a recent reversal in its fortunes, that          
legislation apparently was doomed despite evidence suggesting that most       
lawyers are in favor of it and judicial objections to it are unpersuasive,    
[FN23] because it was said to be too controversial. [FN24] That controversy   
had been escalated, if not generated, [FN25] by a powerful judge [FN26] with a
track record of "hostility to dissent" [FN27] by means that include his       
alleged egregious practice of enrolling lawyers who appear before his circuit 
in the political agitation over FRAP 32.1. [FN28] The legislation was         
threatened because of what it symbolizes-that we have ceased to be a common   
law country.

  Part II of this Article undertakes a detailed critical discourse analysis of
the construction of a revisionist history of the United States doctrine of    
precedent in Hart. Critical discourse analysis is a method of reading texts   
against other texts [FN29] starting from the premise that discourses-cultural 
stories *1557 which we produce and through which we make sense of and thus    
produce "reality"-in turn shape us as professionals, the institutions in which
we work, and the discourses we in turn mobilize in our work through the       
processes of "subject formation." Further, it posits that those discourses    
"circulate without authorship and without discursive and disciplinary         
controls." [FN30] Critical discourse analysis goes on to collapse the         
opposition between text and its consumer/creator, a relationship akin to the  
opposition between mind and body. It posits that "the only way that           
intertextual links between texts can be made is through the specifics of      
habituated, trained, coloured and gendered bodies." [FN31] The analysis thus  
concludes that "[f]eminist discourse analysis pays particular attention to the
embodied experience of those who pass judgment and make the law." [FN32]      
Critical discourse analysis, then, argues for reading texts intertextually,   
seeking to make visible the ways in which institutions and their discourses   
and "practices of subject formation" shape us. It searches for a discourse's  
"external conditions of existence, its appearance and its regularity" [FN33]  
that make it possible for people with particular kinds of histories to know   
certain things and not others, to think certain things and not others.

  This Article begins by analyzing the discourse of rectitude and fidelity to 
the common law in Anastasoff v. United States, [FN34] Hart's companion-piece  
and immediate progenitor, and the fluctuating discourses of Hart. In          
Anastasoff, the late Judge Richard Arnold held that the Eighth Circuit's ban  
on citing unpublished opinions was unconstitutional because it was ultra vires
of Article III judicial power. [FN35] One of Hart's discourses depends on a   
vision of Article III judicial power both plenary and supplemented by         
administrative authority such that Article III power is not implicated by     
unpublication. The other is a discourse of constraint that is ironically, and 
never admitted to be, self-imposed. Hart claims a two-tiered system of        
judicial decisionmaking, which enables judges to prospectively declare some   
opinions precedential and others not, is not unconstitutional. (This is one   
aspect of modern institutionalized unpublication-citation bans are another.)  
Rather, it is business as usual, dignified by a distinctively Anglo-American  
legal tradition.

  *1558 Next, this Article goes on to read Hart against other texts including 
Anastasoff and the precedent Hart adduces. Intertextual reading will suggest  
how the law we read, write, and practice is all the law we have. It will      
further suggest in what image the texts, the institutions, and the discourses 
of the law in turn shape the judges who make it.

  Recent events in what were my home jurisdictions as I wrote this article,   
the Fourth Circuit and the D.C. Circuit, and more generally in Great Britain, 
the seat of the common law, have involved the power of governments and the    
importance of an independent judiciary. In conjunction with the contributions 
of my colleagues in this Symposium, they have prompted the use of my          
methodological strategy in this Article. This strategy is designed to trouble 
the emergent and insistent dominant discourses about unpublication and the    
curious U.S. variant of "the common law." In the manner of another common law 
country, it "respectfully dissents."

  This dissenting opinion is given its specific occasion both by the Symposium
of which this Article forms part, and by the history of the recent proposal to
amend the Federal Rules of Appellate Procedure. That amendment, if it becomes 
law, would undo arguably the least problematic aspect of modern               
institutionalized unpublication: the citation bans that in many jurisdictions 
(1) expose attorneys who cite unpublished opinions back to the courts that    
issued them to sanctions, and (2) spare judges the embarrassment of having to 
confront the propriety and fairness of treating similarly-situated litigants  
differently.

  Judicial ethics questions of these kinds have particularly high stakes in   
parts of the common law world in light of the aftermath of events including   
the 9/11 attacks on the World Trade Center and the Pentagon, the Bali         
bombings, and those on the transportation systems of London and Madrid. Those 
events have provoked imperatives to curtail the civil liberties of some among 
us, "terrorists"and "enemy combatants." As a practical matter, judges are all 
that stand between individuals at risk of having their civil liberties        
curtailed and the power of the state. Difficult as it may be to some reading  
this Article to concede, current abridgements of civil liberties run the      
potential risk of undermining the efficacy of what we call the Rule of Law in 
regulating civil society.

  Thus, if Judge Kozinski is correct that the United States' system of        
precedent has diverged from the common law, [FN36] there are signs that as a  
result we are also at risk of the dominant ethos of the U.S. federal judiciary
ceasing to *1559 be that of common law judges. Rather, we have the emergence  
of a theory and practice of judicial lawmaking that is explicitly legislative 
and brooks no effective constraints other than judicial fiat. Accordingly, the
symbolic stakes of the fate of the proposed Federal Rule of Appellate         
Procedure 32.1, for all the modesty of the proposed reform itself, are        
extraordinarily high.

  Part III of this Article articulates the basis for the dissenting opinion   
about what has become "business as usual," not only in the federal courts of  
appeals, the subject of my analysis here, but also in federal district courts 
and state courts. It argues that Hart displays constitutive and symptomatic   
"hostility to dissent" [FN37] and a corrosive influence on the habitus-the    
"embodied experience" constitutive of the professional identity [FN38]-of the 
United States federal judiciary. This Article draws on Sedgwick's insight that
a "complex drama of ignorance and knowledge is the . . . usual carrier of     
political struggle," [FN39] and on the evidence of the imbrication and        
constitutive significance of race relations [FN40] in the development and     
maintenance of the system of institutionalized unpublication of judicial      
opinions. It suggests that the powerful "ignorance effects" institutionalized 
by the modern unpublication regime in the U.S. courts of appeals have a       
significance beyond the immediate realm of what opinions may be cited, to     
whom, and when. Their significance extends through the habituated interpretive
practices of the members of the federal bench to the fabric of the law itself.

  Sedgwick describes a paradigm she identifies as the "epistemology of the    
closet"-the harnessing of the studied "obtuseness" of "the powerful" [FN41]   
-which operates to "structure meaning" [FN42] in this culture. Using this     
insight, Part III argues that the modern systematization of unpublication has 
created since the 1960s a troubling and characteristic divergence of the U.S. 
federal courts from the "common law." The crux of the divergence is that      
modern systematized unpublication has produced a congeries of "ignorance      
effects . . ., harnessed, licensed, and regulated on a mass scale for striking
enforcements," [FN43] of what the rhetorician of law Peter Goodrich has       
described as legal texts' techniques of legal *1560 monologue and dialogue, by
which the texts of the law seek to pretend to a neutral rationality and to    
suppress alternative discourses. [FN44] These alternative discourses might be 
likened to the voices of dissent.

  Part III reads the justificatory discourse of Hart v. Massanari  [FN45]     
against another set of texts, also emanating from the federal appellate bench,
about modern institutional unpublication. This justificatory discourse        
constitutes the practices of the federal appellate courts and their procedures
for the making of law through its interpretation and application, as does the 
different culturalstory that emerges from the second set of judicial texts. In
turn, this discourse shapes the professional identities of the members of the 
federal appellate bench, who, in turn, make law that is both substantive and  
adjectival.
                                       
                   II. The Discourses of Anastasoff and Hart
  Faye Anastasoff filed a claim for a tax refund that was-just-timely: It was 
mailed one day before the relevant statutory cutoff. [FN46] When it arrived at
the Internal Revenue Service, it was-just-late because the IRS could only     
repay overpaid taxes if the taxes had been paid within three years to the day 
before receipt and filing at the IRS of the refund claim. [FN47] Her claim got
there one day late. [FN48] Ms. Anastasoff's claim that the "Mailbox Rule"     
should save her claim failed in the federal district court and again on       
appeal. [FN49] In what must have seemed to Ms. Anastasoff to be the paradigm  
of "Catch 22," the court held that although the Mailbox Rule rescues claims   
that are received late although postmarked in time, it does not rescue claims 
that are postmarked within the statute of limitations when received after that
statute of limitations has run if the claim is otherwise on time. [FN50] In   
other words, Ms. Anastasoff lost her claim because she filed in what would be 
paradoxical to call the nick of time.

  The Eighth Circuit's decision was based [FN51] on its decision in Christie  
v. United States [FN52]-memorialized in an unpublished opinion issued eight   
years *1561 before. Ms. Anastasoff argued, in an apparently faithful reading  
of Eighth Circuit Rule 23A(i), which provided, inter alia, that "[u]npublished
opinions are not precedent," that the court of appeals was not bound to follow
Christie. [FN53]

  The opinion gave Judge Richard Arnold, who, together with former D.C.       
Circuit Judge Patricia Wald, has been the federal judge most public and       
insistent in his criticism of one aspect [FN54] of the system of contemporary 
institutionalized unpublication of judicial opinions-the designation of       
unpublished opinions as nonprecedential [FN55]-the opportunity, writing for   
the panel, to hold Eighth Circuit Rule 23A(i) "unconstitutional under Article 
III, because it purports to confer on the federal courts a power that goes    
beyond the 'judicial."' [FN56] Ms. Anastasoff's petition for rehearing en banc
raised the constitutional issue, claiming in part that the constitutional     
holding was in error, [FN57] and she argued on appeal that the case was not   
rendered moot, in part because "the status of unpublished opinions is of great
importance to the bar and bench," [FN58] by the IRS's actions of paying her   
refund and issuing a ruling announcing that it acquiesced in the Second       
Circuit's rule in Weisbart v. United States [FN59] that the Mailbox Rule could
save claims like Ms. Anastasoff's. Yet again, Ms. Anastasoff was unsuccessful:
Judge Arnold, writing for the court en banc, held his earlier opinion moot.   
[FN60]

  Nonetheless, unlike its predecessor, In re Rules of the United States Court 
of Appeals for the Tenth Circuit, Adopted November 18, 1986, [FN61] which had 
suggested that modern institutionalized unpublication might be rendered       
unconstitutional on equal protection and due process grounds as well as       
because it may be ultra vires of Article III, Judge Arnold's opinion specifies
the basis of the ultra vires claim. For this reason and because Judge         
Kozinski's revisionist history of U.S. precedent in Hart seeks explicitly to  
contradict it, [FN62] its reasoning merits critical analysis.

  *1562 Opening with powerful symbolism, Judge Arnold draws authority         
initially from the jurisprudence of the Marbury Court, [FN63] which reasoned  
that, "[i]t is emphatically the province and duty of the judicial department  
to say what the law is. Those who apply the rule to particular cases, must of 
necessity expound and interpret the rule." [FN64] This articulation of the    
nature of the common law process-the articulation of rules and their          
interpretation in application in subsequent cases, is followed rapidly by an  
appeal to the necessity to treat like cases alike: "This . . . declaration of 
law . . . must be applied in subsequent cases to similarly situated parties." 
[FN65] The opening argument also makes an appeal to a significantly different 
discourse than the discourse of precedent as iron-clad control on future      
courts and litigants mobilized by Judge Kozinski in Hart: [FN66] A court's    
"declaration of law" in each case "is authoritative to the extent necessary   
for the decision." [FN67]

  Taken together, Judge Arnold opines, "[t]hese principles . . . form the     
doctrine of precedent." [FN68] His next appeal to authority is to the         
understanding of the Founders. Their understanding of precedent was that      
courts declare or articulate rules (formulae that connote the legal fiction   
that common law judges do not make law, but rather discern and announce       
previously existing legal rules) and interpret them in each application.      
Similarly situated litigants must be treated similarly and the iterativity of 
precedent is necessarily incremental. [FN69] The next step in Judge Arnold's  
reasoning, the claim of authority for his holding of unconstitutionality on   
ultra vires grounds, is less well supported. He cites the language of Article 
III as his only direct support for the claim that "[t]he Framers . . .        
considered these principles to derive from the nature of judicial power, and  
intended that they would limit the judicial power delegated to the courts by  
Article III of the Constitution." [FN70] Article III's text-perhaps merely    
descriptive, perhaps pregnant with connotation, merely provides that "[t]he   
judicial Power of the United States, shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from time to time *1563 ordain and
establish." [FN71] In a flurry of citations to authority, from Professor      
Morton Horwitz to Sir William Blackstone to (simultaneously) Roman, Norman,   
and the earliest of English Law, Judge Arnold bridges the gap between his     
English sources of the doctrine of precedent and its embracing by the         
Founders. [FN72] Then, citing Coke, he essays the rhetorically powerful claim 
that "assertion of the authority of precedent had been effective in past      
struggles of the English people against royal usurpations, and for the rule of
law against the arbitrary power of government." [FN73] The Framers thus "had  
inherited a very favorable view of precedent from the seventeenth century" via
Coke. [FN74]

  He concludes that "the doctrine of precedent was not merely well-established
[at the Nation's founding]; it was the historic method of judicial            
decision-making, and well-regarded as a bulwark of judicial independence in   
past struggles for liberty." [FN75] Judge Arnold next qualifies Coke as "the  
legal authority most admired and most often cited by American patriots" and   
impeaches the "only critic of the doctrine of precedent," Hobbes, "who        
regarded the authority of precedent as an affront to the absolute power of the
Sovereign." [FN76] In a rhetorical gesture that is the equivalent of having   
one's cake and eating it too, he then invokes but relegates to a footnote     
those modern scholars who "tend to justify the authority of precedent on      
equitable or prudential grounds" comprising "fundamental fairness, i.e., that 
like cases should be treated alike; . . . the need for predictability; and . .
. as an aid to judicial decision-making, to prevent unnecessary               
reconsideration of established matters." [FN77] Judge Arnold simultaneously   
privileges the authority of the eighteenth century (most influentially        
expounded by Blackstone), that "the judge's duty to follow precedent derives  
from the nature of the judicial power itself." [FN78]

  What follows is an argument for the inextricability of judicial power and   
"the judge's duty to follow precedent." [FN79] This involves a complex        
interlinking *1564 of the legal fiction that judges discover but do not make  
law; the concession that this involves "not only choosing the appropriate     
legal principle but also expounding and interpreting it"; and the claim that  
"[i]n determining the law in one case, judges bind those in subsequent cases."
[FN80] Judge Arnold disaggregates the concept of respect for precedent from   
the necessity for a published judicial opinion, citing Blackstone as authority
for the proposition that the "record of the judicial proceedings and decision 
alone is sufficient evidence of the legal principles necessary to support the 
decision." [FN81] He concludes that "the judicial power is limited by         
[precedents]," and then makes a claim for the reception of this eighteenth    
century British philosophy of law by the Framers. [FN82]

  Judge Arnold goes on rapidly to touch on other justificatory discourses for 
the doctrine of precedent. It "keep[s] . . . the law stable," and "is . . .   
essential for the separation of legislative and judicial power." [FN83]       
Invoking Blackstone, Judge Arnold catalogs the implications of that aspect of 
separation of powers. Judges constrained by the doctrine of precedent do not  
make law, unlike legislators, and thus they avoid arbitrariness. [FN84] In    
this constraint "'consists [the] one main preservative of public liberty."'   
[FN85] In a now-familiar rhetorical gesture, Judge Arnold ascribes the view to
the Framers, to Federalists and Anti-Federalists alike, quoting extensively   
from Hamilton and Madison. [FN86] He then disaggregates symbolic authority of 
the record of judicial decisions from actual authority. Given an ambient      
culture of "limited publication of judicial opinions" historically, he claims,
citing Coke and American sources from the eighteenth, nineteenth, and         
twentieth centuries, "judges and lawyers of the day recognized the authority  
of unpublished decisions even when they were established only by memory or a  
lawyer's unpublished memorandum." [FN87]

  Judge Arnold's peroration again cites the eighteenth century and the        
Framers, and adds the authority of Joseph Story for the proposition that "the 
doctrine of precedent limits the 'judicial power' delegated to the courts in  
Article III." [FN88] He concludes his extensive quotation from Story noting   
that "'a departure from [the doctrine of precedent] would have been deemed [by
the *1565 Framers] an approach to tyranny and arbitrary power, to the exercise
of mere discretion, and to the abandonment of all the just checks upon        
judicial authority."' [FN89] Setting up a counter argument to the proposition 
that "[i]t is often said among judges that the volume of appeals is so high   
that it is simply unrealistic to ascribe precedential value to every decision.
We do not have time to do a decent enough job, the argument runs, when put in 
plain language, to justify treating every opinion as a precedent," [FN90] he  
concludes with a combination of appeals to sense and reason and a rhetorical  
gesture as dramatic as Story's: 
    If this is true, the judicial system is indeed in serious trouble, but the
remedy is not to create an underground body of law good for one place and time
only. The remedy, instead, is to create enough judgeships to handle the       
volume, or, if this is not practical, for each judge to take enough time to do
a competent job with each case. If this means that backlogs will grow, the    
price must still be paid. At bottom, rules like our Rule 28A(i) assert that   
courts have the following power: to choose for themselves, from among all the 
cases they decide, those that they will follow in the future, and those that  
they need not. Indeed, some forms of the non-publication rule even forbid     
citation. Those courts are saying to the bar: "We may have decided this       
question the opposite way yesterday, but this does not bind us today, and     
what's more, you cannot even tell us what we did yesterday." As we have tried 
to explain in this opinion, such a statement exceeds the judicial power, which
is based on reason, not on fiat. [FN91]

Thus, the proposed rule change would remove only the most embarrassing of the 
effects of the system of institutionalized unpublication, but no more. It     
would not address what Judge Arnold identifies as one of the significant      
problems caused by modern institutionalized unpublication, the temptation     
towards judicial misconduct and to an associated culture of duplicity that    
arises from courts repeatedly failing to follow their own criteria for        
designating certain opinions unpublished and thus unprecedential. [FN92] There
is a certain attractiveness to Judge Arnold's rhetoric of judicial rectitude  
and his call for constraints on judicial power. This discourse runs           
dramatically counter to the discourse of the necessity of judges prospectively
controlling the law. It also contradicts the judge-aggrandizing rationale of  
Judge Kozinski for a binary system of judging that he says is necessitated by 
ironclad precedential opinions. If judicial opinions or "reasons for          
judgment," however, depend for their *1566 accuracy in accounting for what    
produced a judge's decision in any case on the intellectual honesty, ethical  
awareness, and capacity for critical self-analysis possessed by the individual
judicial officer, little of value would be lost by eliminating reasoning that 
seeks merely to constrain the future.

  Judge Arnold's rhetoric rests on the authority of English jurisprudence of  
the eighteenth century and that of the Framers, emphasizing both precedent's  
control over judicial lawmaking, and the authority of the law and the people  
versus that of capricious monarchs or judges. In contrast, Judge Kozinski's   
rhetoric tells a story of modernity, of a doctrine of selectively rigid       
precedent that has emerged in the United States federal courts, and is        
distinct from common law precedent, and of judge as legislator who decides    
when the time has come to attempt to bind those who follow to the letter of   
legal rules. And as Anastasoff dealt with the precedential status of          
unpublished opinions, so Hart deals with another of the obvious effects of    
modern institutionalized unpublication. The issue arose as the result of an   
appeal. [FN93] It had nothing to do with the substance of the appeal. Rather, 
it was set in motion by the Ninth Circuit's Notice to Show Cause issued to the
appellant's attorney, which required him to show cause why he should not be   
disciplined for citing an unpublished opinion in his brief, contrary to 9th   
Cir. R. 36-3. [FN94] The appellant's attorney's response to the Notice to Show
Cause was to argue that the rule might be unconstitutional, as a result of    
Anastasoff. [FN95] There is a certain poignant irony in the fact that the     
unpublished opinion that caused the controversy arose from an appeal by a     
social security applicant who might be viewed as the paradigm of those on the 
margins of society whom modern institutionalized unpublication structurally   
subordinates, and often explicitly treats differently by assigning their      
appeals either characteristically or as a matter of policy to the nonargument 
track. This means they may receive little or even no judicial attention in    
their progress through Article III courts. Carol Z. Rice, the appellant in    
Rice v. Chater, [FN96] was a forty-year-old woman with an IQ of 79 and a range
of medical problems who lived with her parents. [FN97] Her only jobs had been 
housekeeping for an uncle and babysitting at the rate of "one dollar per day."
[FN98] Not only is the subject matter of the offending *1567 unpublished      
opinion poignantly apt, but there is also an equally apt irony that Hart has  
nothing to say about the appeal in that case itself, being rather a lengthy   
dissertation on judicial power.

  Judge Kozinski opens by labeling Anastasoff's invitation to the bar to      
breach Rule 36-3 seductive, and labels any alleged relevance of Anastasoff's  
holding to Rule 36-3's constitutionality "mistaken" and speculative. [FN99] He
characterizes Judge Arnold's argument about Article III as "preclud [ing] . . 
. federal courts from making rulings that are not binding in future cases";   
striking at Judge Arnold's careful avoidance of the claim that common law     
judges make rather than discover the law, he parses that as meaning that "they
are required to make law in every case." [FN100]

  Judge Kozinski interposes a footnoted criticism of Judge Arnold's citation  
of Story. He deems it read out of context. Judge Kozinski claims that context 
limits the concept of binding precedent to the effect of the decisions of the 
Supreme Court on the courts of the states. [FN101] He then begins to          
articulate his own theory of precedent, one which draws on the authority of a 
distinctively American "modern legal system": 
    . . . Anastasoff overstates the case. Rules that empower courts of appeal 
to issue nonprecedential decisions do not cut those courts free from all legal
rules and precedents; . . . such rules have a much more limited effect: They  
allow panels of the courts of appeals to determine whether future panels, as  
well as judges of inferior courts of the circuit, will be bound by particular 
*1568 rulings. This is hardly the same as turning our back on all precedents, 
or on the concept of precedent altogether. [FN102]

It is worth noting, in light of Judge Kozinski's subsequent rule-controlling  
discourse, that this passage suggests that the only genuine basis for the     
asserted necessity to devote extensive time and craft to those few opinions   
deemed precedential and thus published is foreclosing interpretability. This  
passage also undermines the claim that the binary system produces consistency.
[FN103] Judge Kozinski's focus is on the individual judge who writes published
opinions and on such a judge's authority.

  Judge Kozinski then takes issue with Judge Arnold's claim that Article III  
judicial power is subject to an implied constitutional limitation which allows
courts to declare some of their decisions nonprecedential. [FN104]            
Interspersed with this portion of Judge Kozinski's argument is an appeal to   
the exigencies of practicality and modernity [FN105] and to the way in which  
the U.S. federal courts have come to "do business." [FN106] This appeal is    
coupled with the claim that "much of what the federal courts do could be      
modified or eliminated without offending the Constitution." [FN107]

  Judge Kozinski then proceeds to caution against "freez[ing] the law into the
mold cast in the eighteenth century." [FN108] He catalogues and criticizes    
eighteenth century U.S. judicial practices that have fallen into disuse,      
[FN109] and in doing so calls into question the accuracy of Judge Arnold's    
account of the doctrine of precedent at the time of the Framers. [FN110] Judge
Kozinski then effectively accuses Judge Arnold of intellectual bad faith in   
"pick[ing] and choos[ing] those ancient practices [he] find[s] salutary as a  
matter of policy, and give[s] them constitutional status." [FN111] In a       
revealing aside, as this first criticism is introduced, Judge Kozinski        
introduces a theme that recurs in the *1569 opinion: the virtues of judicial  
opinions speaking monologically, with one authoritative voice that is         
resistant to future interpretivity. [FN112]

  Judge Kozinski then embarks on an elaborate exposition of the differences   
between precedent at the time of the Framers and precedent in the modern      
federal courts. The proposition that the "overwhelming consensus in the legal 
community has been that having appellate courts issue nonprecedential         
decisions is not inconsistent with the exercise of the judicial power,"       
[FN113] is made revealingly without citation to authority. The judge goes on  
to claim both that contemporary conceptions of precedent are "stricter" than  
those of the Framers and that, in any event, the reason that there is no      
"express prohibition against issuing nonprecedential opinions [is that] . . . 
the Framers would have seen nothing wrong with the practice." [FN114]

  Judge Kozinski moves on to make a series of arguments for the elasticity of 
precedent in the eighteenth century. Along the way, he casts scorn borrowed   
from Austin on the legal fiction repeatedly, if obliquely, invoked by Judge   
Arnold that the common law is "found" by the judges as the need for it arises.
Those arguments range from ones based on doctrinal pronouncements [FN115] and 
jurisprudential theories [FN116] to ones deriving from a range of claims about
the material practices of court hierarchy, [FN117] reporting, [FN118] and the 
training [FN119] of those who purport to make the law. He then sources the    
conception of two classes of "precedent"-the binding and persuasive types-in  
the Exchequer Chamber. [FN120] He expands this distinction into that between  
"the law" and "the opinion of a *1570 judge," which might be mistaken, [FN121]
and makes a curious point that purports to be a common law generalization:    
"For centuries, the most important sources of law were not judicial opinions  
themselves, [because of scarcity] but treatises that restated the law," but   
which his source limits to "the first century of American jurisprudence['s]"  
reliance on Blackstone. [FN122]

  It seems likely that English law reports were scarcer in colonies than in   
England itself, but this is beside the point. What it connotes is a U.S.      
conception of the hardness of doctrine that is at the heart of Langdell's     
legal science. Contemporary U.S. lawyers and judges are cast in the mold of   
Langdell's doctrine by their education in its texts and pedagogical practices.
This conception is at one with Judge Kozinski's almost civilist understanding 
of those legal texts as authoritative, and of those of judges as generally    
not. This aspect of Judge Kozinski's theory of precedent becomes more visible 
when he is unable to differentiate methodologically between a court's         
generation of binding and persuasive precedent. [FN123] What differentiates   
the U.S. federal courts' precedential system from that of the common law,     
[FN124] on his account, is that the former binds the future, the latter is    
bound to follow the past.

  This aspect of Judge Kozinski's habitus [FN125] becomes increasingly visible
as he moves to the heart of his revisionist doctrine of U.S. precedent. Judge 
Kozinski's discourse about the Framers' attitude towards judicial officers    
differs sharply from Judge Arnold's discourse. It replaces one on being ruled 
by law and protecting citizens against the excesses of the ruler, with one    
about government officers whose power was the subject of "contestation."      
[FN126] The flexibility-originating in its derivation from custom-of English  
common law is used to suggest that Judge Kozinski's and thus modernity's      
theory of precedent is more rigid than that of the Framers. [FN127] It also   
leads into the "modern" view, placed-possibly strategically-in the mouths of  
lawyers and not of Judge Kozinski himself, that judges make rather than       
discover the law. [FN128] *1571 This combination of the acknowledgment that   
judges make law and the emergence of opinion reporting is cited as the grounds
for the emergence of judicial opinions-as if for the first time-as "binding   
precedent." [FN129]

  Judge Kozinski then briefly introduces an argument on which he relies       
heavily later in the opinion to justify modern institutionalized              
unpublication, the topic of the final part of the opinion. He notes the       
difficulty of judges informing themselves about a burgeoning body of precedent
and the necessity for prudent judges to "keep the law clean," as their English
predecessors did by adopting selective reporting of opinions. He elaborates on
the binary classes of persuasive and binding opinions [FN130] and begins to   
differentiate the common law from the system of precedent that operates in the
contemporary U.S. federal courts. [FN131] He does this in part by emphasizing 
the hierarchical system of precedent that operates in federal courts, [FN132] 
and in part by explicitly articulating an argument central to his discourse on
precedent. Binding authority-"very powerful medicine" [FN133]-must be crafted 
using "precise language," [FN134] via a process of "collegial[ity]" [FN135] so
that the court speaks with one voice, rather than admitting of dissent-or     
dialogue.

  Judge Kozinski then pairs an argument about the disorder that would ensue if
the federal courts' system of differentiating binding and persuasive precedent
was abandoned with an insistence on his view that this system is merely a     
matter of policy choice and not a constitutional matter. [FN136] The crux of  
these paired arguments is that if Article III courts must constitutionally    
follow precedent, rather than determine which opinions are precedential and   
which are not as a matter of policy, then this would apply to the federal     
district courts. On *1572 Judge Kozinski's account, those courts do not have  
the power to issue binding precedent (as a matter of policy choice).

  This argument has two flaws. First, if Judge Arnold is eventually proven    
right, the matter is one of an absence of constitutional power to decide which
opinions are precedential and which are not. Then indeed, the district courts,
on those occasions when judges rather than juries decide cases, would likewise
lack the power to determine precedential status via fiat and would be obliged 
to follow precedent within the structure of that common law commonplace, an   
hierarchical system of appellate justice. The potential results would be a    
corrective to the rule of law and structural subordination problems that      
follow the present system of institutionalized unpublication. Those problems  
include, most obviously, arbitrariness and its various collateral costs-those 
which derive from disrespect for the judiciary, the courts, and the law.      
Further, because the United States federal courts, like their common law      
predecessors, follow a system of precedent that depends in part on court      
hierarchy and a differentiation between trial and appellate jurisdiction and  
function, the extent to which federal district court judges would have a      
disruptive law-divining, -declaring, or -making function (depending on one's  
view of how common law decisionmaking characteristically operates) seems      
extremely limited. This is especially true given the much more widespread use 
of juries in fully litigated matters in the United States than elsewhere in   
the common law world, particularly in civil cases. Error correction, after    
all, is an integral part of "writing the law."

  The final part of the opinion opens with a reiteration of the claim that    
binding precedent is a creation of the United States federal courts that      
postdates both Article III and English common law, [FN137] this time, however,
introduced in a way that is a harbinger of Judge Kozinski's Janus-faced       
discourse on various aspectsof the system of modern institutionalized         
unpublication. One paragraph opens with the statement that while "the         
principle of precedent was well established in the common law courts . . . we 
do not agree that it was known and applied in the strict sense in which we    
apply binding authority today." [FN138] Yet near the end, it concedes the     
proposition that "[t]he concept of binding case precedent, though it was known
at common law, was used exceedingly sparingly." [FN139] This latter claim is  
supported only by an earlier footnote that extremely selectively and indeed   
tendentiously parses [FN140] Plucknett's account of *1573 the effect of       
proceedings of the Court of Exchequer Chamber as evidence that "clearly       
suggests common law judges knew the distinction between binding and persuasive
precedent." [FN141] What ensues is a discourse on the rigidity of the *1574   
doctrine of binding precedent and the power of the unitary opinion. Binding   
precedent in the federal courts is "strict," [FN142] provides "rigid          
constraint," [FN143] and is "the backbone of much of the federal judicial     
system today." [FN144] The "single case . . . [is] sufficient to establish a  
particular rule of law." [FN145]

  Moving on to complicate this discourse in articulating his case for         
selective rather than strict binding precedent, Judge Kozinski has a little   
suggestive-indeed perhaps cynical-"originalist" fun at the expense of Justices
O'Connor, Kennedy, and Souter in Planned Parenthood v. Casey. [FN146] He      
suggests that the system of selective binding precedent gives originalists the
capacity to depart from precedents that are unconstitutional. [FN147] He also 
begins the discourse on quality that is used near the opinion's end to justify
selective rather than strict binding precedent by proposing that strict       
binding precedent is flawed by mere priority in cases where the lawyers who   
are the first to raise a point are inadequate. [FN148] Let us leave aside for 
now the logical problems in squaring a claim for the necessity for "binding   
precedent" of any stripe with a system where judges can effectively do        
whatever they like, to whomever they like, whenever they feel like it, because
only they have the power to say what counts as precedent and what does not.   
Instead, let us focus on what is valued here, the authority of the individual 
court. Indeed, it is often the power of the individual judge, given the power 
of the drafter, on Judge Kozinski's account, to constrain future              
interpretability and achieve the univocality of a published "single opinion   
speaking for the court" that he privileges. [FN149] This power may often be   
cynically bargained for or be the product of forced consensus. [FN150]

  Judge Kozinksi's peroration at once anatomizes the published opinion and    
seeks to account for the necessity of modern institutionalized unpublication  
on efficiency grounds. The system of unpublished opinions is legislative,     
bespeaking a codifying impulse. It aims to "develop . . . a coherent and      
internally consistent body of caselaw to serve as binding authority . . . .   
*1575 Precedential opinions are meant to govern . . . future cases . . . ."   
[FN151] Their drafters must remove those facts which might "provide a spurious
basis for distinguishing the case in the future" and "envision the countless  
permutations of facts that might arise in the universe of future cases."      
[FN152] This "solemn judicial act" takes a lot of time to do, Judge Kozinski  
reasons. Judges cannot be expected to do it in every case, but only in a      
"manageable number of cases," consigning the others to "unpublished           
dispositions and judgment orders." [FN153]

  Judge Kozinski goes on to make claims for the quality of those unpublished  
dispositions and for their judicial authorship. Those claims will be subject  
to a rather different kind of discourse analysis in Part III of this Article. 
Suffice it to say at this point that consigning to a footnote the possibility 
of "irresponsible and unaccountable practices" enabled by the two-tiered      
system of judging is troubling. The same applies to a highly selective choice 
of sources used to substantiate the claim that judges are kept "honest" by the
current system. [FN154] There are many authorities, among them federal judges,
who have expressed radically differing views. [FN155] Indeed, a recent study  
shows a pattern among Democratic appointees to the Ninth Circuit of deciding  
asylum cases with published opinions differently from those with unpublished  
opinions. [FN156]

  More troubling still is a claim by the most public proponent of maintaining 
what is arguably the least significant and the least problematic of the       
various highly problematic aspects of modern institutionalized unpublication: 
citation bans. This claim alleges that because "a case is decided without a   
precedential opinion does not mean it is not fully considered, or that the    
disposition does not reflect a reasoned analysis of the issues presented . . .
. An unpublished *1576 disposition is, more or less, a letter from the court  
to parties familiar with the facts, announcing the result and essential       
rationale of the court's decision." [FN157] What makes it troubling is that I 
am familiar with what is revealed by a cursory search of what is made         
available as a result of the Ninth Circuit's implementation of a recent       
federal law [FN158] apparently requiring the federal courts to post all of    
their unpublished opinions on their websites in "text searchable format."     
[FN159] Take, for example, the following unpublished opinion issued by a panel
of the Ninth Circuit: 
    Miguel Nava Rivas seeks reversal of his conviction of three counts: (1)   
conspiracy to possess marijuana with intent to distribute, 21 U.S.C. <section>
<section> 841(a)(1) and (b)(1)(B), and 846; (2) possession with intent to     
distribute marijuana, and aiding others to do the same, 21 U.S.C. <section>   
<section> 841(a)(1) and (b)(1)(B)(vii), and 18 U.S.C. <section> 2; and (3)    
conspiracy to import marijuana, 21 U.S.C. <section><section> 952(a), 960(a)(1)
, 960(b)(2), and 963. Rivas asserts that there was insufficient evidence to   
sustain any of these three counts. Viewing the evidence in the light most     
favorable to the prosecution, a rational trier of fact could have found each  
element of the crime beyond a reasonable doubt. United States v. Bishop, 959  
F.2d 820, 829 (9th Cir. 1992). Rivas also challenges the admission of         
testimony by the government's expert witness. The district court did not abuse
its discretion, let alone commit plain error, United States v. Alattorre, 222 
F.3d 1098, 1100 (9th Cir. 2000), by admitting the witness testimony. 
    AFFIRMED . . . . [FN160]

  Judge Kozinski himself has criticized a judge who "offered nothing at all to
justify his actions-not a case, not a statute, not a bankruptcy treatise, not 
a law review article, not a student note, not even a blawg," and has          
criticized federal judges who "refuse . . . to give reasons for [their]       
actions" and praised those who "give . . . reasons for [their] orders."       
[FN161]

  In closing, this part of the Article has suggested that Judge Kozinski's    
revisionist history of precedent is, in his view, that the United States      
federal *1577 courts are not common law courts. They claim much more power for
the judge and manifest much less tolerance for the messiness of               
interpretability that differentiates the common from the civil law. Part III  
of this Article compares the final section of Hart with other texts to explore
the implications of Judge Kozinski's model of the judge and his power, which  
diverge so significantly from those mobilized by Judge Arnold. The conclusion 
is that in Hart, Judge Kozinski is asking us to take a lot on trust, and that 
the record invites a decision against him.
                                       
                           III. Dissenting Judgment
  What is here meant by the common law, a term with multiple meanings? In this
Article, common law refers to law that is judge-made (or interpreted, which   
this Article takes to be the self-same thing). It means a practice of         
law-making with a curious double heritage. The first is rooted in a colonial  
power's attempt to entrench state power by standardizing and centralizing law 
that until then had been both decentralized and normatively responsive to     
local conditions. [FN162] The second heritage is the ideological commitment to
custom [FN163] and the material practices associated with the transmission and
application of customary law and involved in the habituation and training of  
lawyers and judges on the one hand, and the practices of circuit-riding on the
other. [FN164] The latter inculcated in the elite (white male) members of the 
inner bar, who still overwhelmingly become common law judges, a culture of    
independence-we might call it dissent-and of a professional amour propre      
fashioned on the fantasy of or desire for what the late Jacques Derrida       
famously called "the possibility of justice" (in her infinite variability).

  The first of these manifestations of judicial culture is one that Prime     
Minister Blair has had to recently confront, to his cost, in the person of    
Lord Irvine of Lairg. Lord Irvine, the former Lord Chancellor and Prime       
Minister Blair's former pupil-master, provided leadership for the House of    
Lords' opposition to the British government's proposed antiterrorist          
legislation. [FN165] *1578 This opposition led to the locating of             
decisionmaking power to circumscribe what we might call civil liberties or due
process-specifically the issuing of any type of "control order" rather than   
only "orders for house arrest, which would require derogation from the        
European Convention on Human Rights"-in the bench rather than the executive   
arm of government, as the Prime Minister had wanted. The second manifestation 
is not unrelated to the first: The clearest articulation of its spirit is     
found in the suggestion of the distinguished New Zealand jurist Lord Cooke of 
Thorndon that even in those common law countries without constitutionally     
entrenched, written Bills of Rights, there are individual rights beyond the   
reach of government that the common law judiciary is bound to protect. [FN166]

  Of specific concern is the phenomenon of enemy combatant cases that emerged 
from the Supreme Court's last term. [FN167] This resulted in a decision in a  
subsequent enemy combatant case by Judge Joyce Hens Green of the United States
District Court for the District of Columbia, [FN168] a court in the D.C.      
Circuit, *1579 which comparatively recently ended citation bans on unpublished
(and still formally nonprecedential) opinions. It is a circuit whose judges   
opined, albeit anonymously, that they did so because they did not like secret 
law and which produced the current Chief Justice of the Supreme Court, who is 
said to favor the end of citation bans and who will need to address FRAP 32.1.
[FN169] It is also a circuit that produced the former Judge Wald, who, apart  
from the late Judge Richard Arnold, has perhaps been the most trenchant,      
frank, and courageous judicial opponent of unpublication. [FN170]

  That circuit also numbers among its judges David Tatel, who on February 15, 
2005, in In re Grand Jury Subpoena, Judith Miller, [FN171] invoked Lewis      
Powell, an alumnus of Washington and Lee University, [FN172] and a Federal    
Rule, in this case, Rule 501 of the Federal Rules of Evidence. [FN173] Judge  
Tatel took a doctrinal step that seems to be an equivalent of Lord Cooke's in 
this nation's *1580 curious constitutional context. [FN174] Judge Tatel       
concluded that a common law First Amendment privilege for journalists in      
relation to grand jury proceedings "remains open," [FN175] and that failing to
recognize the privilege "shirk[s] the common law function assigned by Rule 501
and 'freeze[s] the law."' [FN176] The use to which I am putting Judge Tatel's 
doctrinal work perhaps [FN177] sits uneasily with an opinion with redacted    
sections. To the extent that it does, it might be seen to be a legal text that
explicitly balances the conflict between the possibilities and necessity of   
common law-making, and its abandonment in the interests of control on the one 
hand and judicial power exercised in its own interests on the other (which may
be much the same thing). And it does so at a critical moment in the           
development of the nation's common law and the constitution of its judiciary. 
Judge Tatel's model of the far reaches of the power of the common law judge is
a model that discerns the legal authority for such power in the face of       
government attempts to circumscribe the "rights" of individuals in the        
interest of executive powers. It does not profess ignorance of evidence of    
inequality effects or of costs to rule of law discourse in the interests of   
asserting the power to treat some classes of citizens differently from others,
*1581 to treat similarly-situated persons differently, and to apply the law it
makes or discovers or not, as it pleases. It is, in short, a discourse of the 
common law as both responsive to appeals to its authority and as appealing to 
a rhetoric of responsibility. Discourse Analysis concerns itself with         
regularly occurring cultural stories that both produce the individual habitus,
and, of most relevance to my use of it in this part, with "look[ing] for the  
external conditions of [a discourse's] existence, its appearance and its      
regularity," prompting us to ask "how is it possible to know that, to think   
that." [FN178]

  Why does this article conclude that we have ceased to be a common law       
country? Because we are normalizing and rendering normative a judicial culture
that has replaced constitutive investments in judicial independence and       
various rule of law effects with one that is heedless of the call of Lord     
Cooke, and that frequently betrays a combination of cynicism and              
disingenuousness. Some better placed to know what goes on behind the closed   
doors of chambers have described conduct that merits the label corruption.    
[FN179] It seems, however, most tellingly and troublingly to manifest a lack  
of comprehension and valuing of the enormous responsibility of the common law 
judicial office in Anglo-American constitutional democracies.

  Before moving to a critical discourse analysis of a series of texts authored
by Judge Kozinski and others with privileged access to the workings of modern 
institutionalized unpublication, consider some concrete and particular facts. 
Just under 80% [FN180] of the opinions of the United States Courts of Appeals 
are unpublished. This fact alerts us to another: This is where and how most   
"common," or more accurately, judge-made law is presently being forged.

  This signifies first that such opinions are difficult to research. That     
difficulty is exacerbated by lack of both economic resources and the legal    
version of "cultural capital" possessed by repeat-player law practices or     
practices which act for well-resourced repeat player litigants. [FN181]       
Second, it *1582 signifies that-contrary to the frequent apologist claims that
citation bans are confined to a few places-in most state and federal courts,  
citing unpublished opinions back to the court that decided them (except in    
extraordinarily narrow circumstances, and even then, in only some             
jurisdictions) [FN182] is forbidden and thus sanctionable. [FN183] Finally, it
signifies that these decisions are, almost everywhere, rendered formally      
"non-precedential." [FN184]

  All this occurred through the doubled development of screening and          
institutionalized unpublication in federal courts during the latter half of   
the 20th century. [FN185] The practice was justified by the claim that the    
volume of precedent prevented indexing by courts' law libraries, [FN186] a    
problem that technology could now potentially solve, if the judges would      
cooperate. [FN187] Citation bans were also justified by the claim that the    
volume of precedent had become overwhelming, [FN188] a weak claim given that  
contemporary research suggests that good judges and lawyers routinely research
unpublished opinions if they can get access to them. [FN189] There was also,  
as I have written, a secret history underpinning these developments in case   
management technology, namely, judicial anger and disdain in response to the  
implementation of Brown and the contemporary revolution in the rights of      
criminal defendants and those convicted of crimes. [FN190]

  Numerous contemporary justifications for maintaining the various practices  
that constitute institutionalized unpublication, (including screening,        
citation bans, and so on) are extended. A frequent claim is that judicial time
will be saved by circumscription of the legal research universe. This is a    
*1583 questionable proposition both because at least some judges appear not to
do much of the research themselves, and because, as Lauren Robel's work       
suggests, those who do routinely research as much of the corpus of unpublished
authority as they can get their hands on. [FN191] Another claim is that judges
have insufficient time to produce more than a few publishable-quality         
opinions, [FN192] a claim contestable given: the relatively low               
opinion-writing rate of U.S. judges by international standards; their unique  
reliance on clerks and staff attorneys to do much of their writing; [FN193]   
the fact that some of the most ardent proponents of this view are also        
trenchantly opposed to any expansion in the size of the Article III judiciary 
[FN194] and that, at least in one notable case, seem to devote considerable   
time to writing things other than opinions-video-game reviews for the Wall    
Street Journal, for example. [FN195] The last justification, "law-cleaning,"  
is, on closer examination, a discourse of control or circumscription of the   
possibilities of development of the common law in response to the many appeals
that diverse culture produces.

  What emerges from the history constructed by proponents of modern           
institutionalized unpublication and their discourse of justification for its  
continuation is a gap between what is spoken and unspoken, between those      
seeking to maintain the status quo and those with no such investments, as     
between published and unpublished opinions. As I will go on to suggest,       
parallel with this double discourse is a gap between the "public" and         
"private" utterances from some members of the judiciary on the subject of     
unpublication.

  In The Epistemology of the Closet, Sedgwick is explicitly concerned with    
theorizing, selectively mapping, and reading deconstructively the emergence of
the binary pair "heterosexual/homosexual" in the late nineteenth-century. Her 
thesis is that "many of the major nodes of thought and knowledge in           
twentieth-century Western culture as a whole are structured-indeed,           
fractured-by a chronic, now endemic crisis of homo/heterosexual definition,"  
[FN196] and that this *1584 "nominally marginal . . . set of definitional     
issues" is central "to the important knowledges and understandings of         
twentieth-century Western culture as a whole." [FN197] Sedgwick's analysis    
serves as a paradigm for a binary definitional system that has come to        
characterize the production of common law in the United States since the      
middle of the twentieth century. This is applicable specifically since Brown's
desegregation mandate saw a largely constitutionally racist southern          
judiciary, embodied in the judges of the United States Court of Appeals for   
the Fourth Circuit, imagine an institutional substitute for Jim Crow. [FN198] 
Race is as constitutive of the culture of the United States as the            
"epistemology of the closet" is of twentieth-century western culture,         
something that Sedgwick herself notes in passing. [FN199] In Sedgwick's terms,
the closet leaves "no space in the culture exempt" from its "potent           
incoherences of . . . definition." [FN200]

  However, Sedgwick explicitly invites a more general exploration of the      
purchase potentially opened up by her analysis of the "relations of the       
closet," which "have the potential for being peculiarly revealing . . . about 
speech acts more generally." [FN201] Sedgwick extends an invitation to deploy 
her epistemological insight beyond the "modern homo/heterosexual definitional 
crisis." Her purpose, she writes, is "not to know how far [the book's] . . .  
insights and projects are generalizable, not . . . to say in advance where the
semantic specificity of these issues gives over to (or: itself structures?)   
the syntax of a 'broader' or more abstractable critical project." [FN202] Her 
analytical method, she writes, has the ability "in the hands of an inquirer   
with different needs, talents, or positionings, to clarify the distinctive    
kinds of resistance offered to it from different spaces on the social map. . .
 ." [FN203]

  Sedgwick's deconstructive reading of texts peculiarly symptomatic of the    
late nineteenth-century's "radical condensation of sexual categories" in order
to explore its "unpredictably varied and acute implications and consequences" 
notes that this binary split "took place in a setting . . . of urgent         
homophobic pressure to devalue one of the two nominally symmetrical forms. . .
." [FN204] So too, the institutionalization of the binary                     
published/unpublished took place in a period when reaction against the        
direction constituted by Brown arguably *1585 exerted a similar pressure on   
resistant legal institutions and actors to devalue the United States's        
paradigmatic racial minority. [FN205]

  Sedgwick takes pains to argue that while the binary homosexual/heterosexual 
is apparently symmetrically binary, [FN206] the two terms: 
    actually subsist in a more unsettled and dynamic tacit relation according 
to which, first, term B is not symmetrical with but subordinated to term A;   
but, second, the ontologically valorized term A actually depends for its      
meaning on the simultaneous subsumption and exclusion of term B; hence, third,
the question of priority between the supposed central and the supposed        
marginal category of each dyad is irresolvably unstable, an instability caused
by the fact that term B is constituted as at once internal and external to    
term A. [FN207]

She goes on to caution that awareness of this "irresolvable instability" does 
not mean thatthe binary is powerless, nor that its deconstruction neutralizes 
its power. Rather, she suggests that the binary may be identified as          
"peculiarly densely charged with lasting potentials for powerful manipulation 
. . . precisely . . . [through] the double bind" and that recognizing this    
"irresolvable instability" makes available "discursive authority" to persons  
with radically different political investments. [FN208]

  Below are two texts-quotations-to read against each other and some other    
(con)texts against which to read them, for the purposes of destabilizing,     
however fleetingly, the epistemology of the binary opposition of precedent/not
precedent, the epistemology of "unpublication," and in the interests          
anatomizing judicial culture which has made this cease to be a common law     
country. The quotations are both from Judge Alex Kozinski of the United States
Court of Appeals for the Ninth Circuit, the author of Hart, and a key         
player-arguably the key player [FN209]-in organizing opposition to recent     
modest *1586 reform measures [FN210] proceeding from the Federal Judicial     
Conference and earlier from the federal legislature, directed at              
institutionalized unpublication.

  First, in Hart, emphasizing the labor required in drafting precedential     
opinions, which he characterized as "a solemn judicial act," [FN211] Judge    
Kozinski opined that only a certain number of highly polished, and thus in his
view, publishable, opinions-on average twenty per judge [FN212]-could be      
produced each year. [FN213] As to unpublished opinions, he described these as 
"more or less, [FN214] a letter from the court to parties familiar with the   
facts, announcing the result and the essential rationale of the court's       
decision." [FN215] He invoked the *1587 epistemology of unpublication in the  
(unusually valorized) implicit binary of private correspondence and public    
record, thus manifesting the binary's "lasting potentials for powerful        
manipulation" and demonstrating that this "irresolvable instability" makes    
available "discursive authority." [FN216] The official story he gave was as   
follows: 
    That a case is decided without a precedential opinion does not mean it is 
not fully considered, or that the disposition does not reflect a reasoned     
analysis of the issues presented. What it does mean is that the disposition is
not written in a way that will be fully intelligible to those unfamiliar with 
the case, and the rule of law is not announced in a way that makes it suitable
for governing future cases. [FN217]

Going on to decry the judicial time that would be wasted if parties were      
allowed to cite to unpublished opinions, Judge Kozinski was at pains to claim 
that writing is done by judges. [FN218] As noted, Judge Kozinski's discourse  
on the necessity of the binary publication/unpublication system to enable     
judges to produce polished or carefully crafted "controlling . . . authority" 
[FN219] may proceed from what in another context has been called his          
"hostility to dissent." [FN220] This hostility seems to drive him to make the 
law speak with one tightly-controlled voice, engaged in what some might call  
the Quixotic attempt to foreclose interpretability via the "rigid constraint  
that binding authority provides today." [FN221] There is more to be said about
the discourse of control than this, however.

  In a conversation, in 2004, with a journalist, in one of the instances where
the judge appears both much less guarded about what he goes on the record as  
saying and remarkably willing to say things that seem at profound odds with   
what he says elsewhere, he conceded that: 
    Unpublished dispositions-unlike opinions-are often drafted entirely by law
clerks and staff attorneys. . . . There is simply no time or opportunity to   
fine-tune the language of the disposition. . . . When the people making the   
sausage tell you it's not safe for human consumption, it seems strange *1588  
indeed to have a committee in Washington tell people to go ahead and eat it   
anyway. [FN222]

Added to that second quotation are the insights enabled by the following three
 (con)texts.

  First, Judge Kozinski and his colleague Judge Reinhardt have described the  
Ninth Circuit's practices of preparing unpublished opinions, "which [according
to the judges] are churned out at a rate of more than one per day per panel," 
as follows: 
    Most are drafted by law clerks with relatively few edits from the judges. 
Fully 40 percent of our [unpublished opinions] are in screening cases, which  
are prepared by our central staff. Every month, three judges meet with the    
staff attorneys who present us with the briefs, records, and proposed         
[unpublished opinions] in 100 to 150 screening cases. If we unanimously agree 
that the case can be resolved without oral argument, we make sure the result  
is correct, but we seldom edit the [unpublished opinion], much less rewrite it
from scratch. [FN223]

Next, in 2002, the then-Chair of the Federal Rules of Evidence Committee      
opined in the Federal Rules Decisions: 
    No one can deny, however, that speeding up the production line while      
cutting back on quality control will increase the risk of mistakes in any     
operation. It is apparent (although almost never articulated) that some of the
circuits attitudes toward their non-reporter published opinions is driven less
by the belief that those opinions say nothing new than by the fear that they  
may say something that is wrong. [FN224]

He also noted that decisions about publication may be made not only by        
individual judges or by committees of judges, but also by clerks or indeed by 
West publishing. [FN225] In New York and Colorado, the decision is effectively
made by a bureaucrat in the employ of the courts.

  *1589 Finally, analysis of one of a series of studies made in the 1980s of  
case-management procedures in the federal courts produced by the Federal      
Judicial Center, the research arm of the federal courts, establishes that: 
    In many circuits the associated practices of [unpublication and]          
'screening cases for the nonargument track' . . . together with the delegation
of much judicial work either to clerks or staff attorneys who are often       
junior, inexperienced, minimally trained, [FN226] and dissatisfied with the   
tasks assigned them, mean that judges often do not read any part of the record
of an appeal before 'signing off' on an unpublished opinion written by a      
[clerk or more often a] staff attorney. [FN227]

  Judge Kozinski is in some respects a "straw judge" around whom to construct 
the argument made here, that we have ceased to be a common law country because
we have ceased to produce common law judges, but he is, regrettably, not      
alone. Below are listed just a few examples of evidence of the increasing     
pervasiveness of the epistemology of unpublication. In 2003, a former student 
attempted to secure from an Alaskan court two unpublished opinions allowing   
same-sex couple adoption on a "second parent" basis. [FN228] There were no    
published opinions allowing this practice, and unpublished opinions do not    
have precedential status in Alaska. [FN229] He was informed that he had to    
make a written submission to the court seeking "release" of the two opinions  
in question, and the court clerk, apparently passing on a message from a      
judge, expected him to believe that this procedure was required because "the  
cases are closed by statute because they involve minors." [FN230] This was    
despite the fact that the most cursory research would establish that there are
volumes of published Alaskan adoption cases, almost all of which, by          
definition, involveminors. Next, the Ninth Circuit's response to the          
legislative amendment *1590 requiring posting on websites in "text searchable 
form" [FN231] was to issue a policy noting that "[e]ffective September 28,    
2004, the court's memoranda opinions will be posted on our . . . web page. . .
. [and] will be removed after 30 days. Memoranda dispositions issues by the   
court's screening panels [that is, likely the vast majority of them] are not  
currently included." [FN232] The Ninth Circuit's memorandum opinions available
on the website are only searchable by matter number, party name, or date; that
is, you have to know exactly what you are looking for to search them. [FN233]

  Additionally, there is the phenomenon of what, and this may sound rather    
old-fashioned, should be documents of public record made preferentially       
available to West and LEXIS, who are also empowered to alter the texts of     
those documents and otherwise shape the searchable universe of the common law,
[FN234] while at the same time deriving duopolistic profits from their        
privileged access. [FN235] This has a significant inequality effect given that
most law graduates practice in small firms with limited financial capacity to 
subscribe to the Rolls Royce system of "publication" [FN236] that West and    
LEXIS control, [FN237] and given the inability of what is posted on some court
websites, where those documents are posted, to be meaningfully searched.      
[FN238] There is, in addition, ample evidence that modern institutionalized   
unpublication, congruent with and bearing the *1591 traces of the secret      
history of race discrimination that impelled it in private, [FN239] operates  
to produce inequality effects. That is, it operates in discriminatory ways to 
structurally subordinate certain groups, including: social security           
appellants, gay men and lesbians, ADA appellants and appellants against NLRB  
decisions, and indeed appellants against the government generally, pro se     
appellants and those with poor-quality and poorly-resourced lawyers, and      
likely also claimants under VAWA, (ironically) under the Prisoner Litigation  
Reform Act, Civil Rights litigants more generally, prison inmates claiming    
sexual abuse by prison officers, and criminal law appellants in non- or       
pre-habeas cases, at least in the Fourth Circuit. [FN240] In addition, there  
are various costs to the rule of law (or at least to rule of law talk and its 
material effects). Its aspects include: transparency and due process effects, 
the compromising of judicial accountability and legitimacy, the stunting of   
the potential development of the common law, the congeries of theoretical and 
practical problems in declaring opinions prospectively unprecedential, and    
what is at least the appearance of the possibility of corruption. [FN241]     
There is widespread evidence that institutionalized unpublication allows      
repeat players to selectively manipulate precedent by rigging the system to   
try to keep precedents that operate to their disadvantage unpublished and thus
nonprecedential. [FN242] Further, these opinions are often effectively        
inaccessible to anyone except repeat players who have the resources to keep   
well-indexed libraries of unpublished opinions and do so as a matter of       
course. [FN243]

  Finally, judges themselves (and attorneys and former judicial clerks) have  
gone on record noting that what we might call corruption or cynicism combined 
with disingenuousness operate in the selection of opinions for unpublication, 
and freely admitting that they often do not follow their own published rules  
for sorting the publishable from the unpublishable. They also delegate the    
work of Article III judges to clerks and staff attorneys, most of whom are    
barely out of *1592 law school and who, the evidence suggests, are simply not 
up to the task, [FN244] both because of their impoverished research and       
reasoning skills [FN245] and also because of the culture in which they often  
operate. [FN246] Judge Kozinski, for example, one of the most influential     
feeder judges for Supreme Court clerkships, [FN247] has gone on record as     
saying that a key criterion in his selection of clerks is his intolerance for 
"dissent in chambers." [FN248] Additionally, there is evidence of party-line  
and other kinds of judicial bias associated with institutionalized            
unpublication, most recently evinced by a study of the Ninth Circuit's        
immigration jurisprudence. [FN249]

  Most recently, in the June 1, 2005 Report on Citations to Unpublished       
Opinions in the Federal Courts of Appeals of the Federal Judicial Center,     
there was significant evidence of judicial officers in many circuits opposing 
the rule change who claimed "special problems" were likely to arise for their 
circuit if the proposed rule change was implemented when what they actually   
feared was a projected result of general application such as workload         
increase. [FN250] That they were unable or unwilling to take care in advancing
this argument is indicative of the spread of the "epistemology of             
unpublication" with its attendant contempt, dishonesty, and corrosiveness.    
[FN251] There is much more obviously troubling and widespread evidence of     
cynicism and poor standards in predictions of judicial opponents to the       
proposed change opining that it would *1593 lead to judges, for example,      
cutting the text of unpublished opinions to a bare minimum, without reasoning;
[FN252] and in judges decrying the necessity to carefully check (or indeed    
meaningfully check at all) the work of clerks and staff attorneys in screened 
cases. [FN253] Additionally, a judge on the Ninth Circuit opposing the rule   
change cited the high volume of immigration cases in that circuit as a reason 
why the proposed rule change would cause special problems there. [FN254] This 
concern suggests that the origins of modern institutionalized unpublication,  
in judicial race bias in the aftermath of Brown, [FN255] may support this     
other "peculiar institution" as well.

  The inconsistent stories that emerge in Judge Kozinski's articulation of the
epistemology of unpublication suggest the force of Sedgwick's insight into    
"the contemptuous demonstration that powerful people don't have to be acute or
right, but even more, the contemptuous demonstration . . . of how obtuseness  
itself arms the powerful against their enemies. . . " [FN256] on the one hand,
and what a respectful dissenter might call "inconsistency" on the other. Judge
Kozinski's writings on modern institutionalized unpublication manifest a      
tolerance for what some might call intellectual sloppiness and others         
disingenuousness. They also exhibit an acceptance of unaccountability to the  
public and the law and for the work of minimally supervised underlings.

  The recent Report of the Federal Judicial Center indicates that while Judge 
Kozinski may be extreme, he is far from alone. We have ceased to be a common  
law country for two reasons. First, our methodologically bankrupt system      
cannot meaningfully differentiate between generating binding and persuasive   
precedent in any way that does not depend on raw and essentially *1594        
legislative power. Thus, we have moved to a version of precedent that seeks to
bind the future rather than to be informed by the past, the practical         
justifications of which are at best intellectually impoverished and           
Janus-faced, and reveal the price to the ethical fiber of the judiciary that  
this exacts. Second, as long as modern institutionalized unpublication        
persists, we will not normalize common law judges ethically negotiating the   
boundaries between past and future, between the nation's law and the law of   
the land and its people, a demanding and, now perhaps more than ever, critical
ethical task.

  In closing, it beggars my comprehension, conservatively trained common      
lawyer that I am, how a judiciary which regards its responsibilities with the 
gravity they merit could, in the face of this evidence, not be moved to       
respond to it with alacrity and alarm, but rather engage in the kind of       
displacement activity that has surrounded FRAP 32.1 for the past two years.   
The rule of law can be nothing more than a species of last refuge of the      
scoundrel, or an instrument of colonialism. Or it can, as Lord Cooke and Judge
Tatel have suggested, be what is not melodramatic to call the solemn trust of 
judicial officers in constitutional democracies, where majoritarian tyranny   
and the risks to individual and civil rights of unchecked executive power are 
constitutionally possible.

  Madison famously wrote that "a people who mean to be their own Governors,   
must arm themselves with the power which knowledge gives." [FN257] I believe, 
perhaps betraying my training and enormous respect for the best of common law 
judges, that there remains some chance that the United States judiciary will  
hear the appeal to their office that lawyers and scholars and some of their   
brethren are making, and respond with seriousness to evidence of the          
undermining of trust in and respect for our courts and the judicial office    
that the persistence of the system of institutionalized unpublication causes. 
This is despite my registering the force of Sedgwick's acute insight that the 
"irresolvable instability" [FN258] of the system of published/unpublished     
opinions, precedential/nonprecedential decisions, law/not law signals not that
it is easy to supplant but rather a site "peculiarly densely charged with     
lasting potentials for powerful manipulation." [FN259] Until those powerful   
judicial subjects undertake a *1595 new ethically charged approach to their   
responsibility to others for the law of the land, those others among us with  
responsibility for the development of the common law must imagine ways to     
respond to Madison's counsel.

[FNa1]. Penelope Pether, Professor of Law, Villanova University School of Law;
formerly Professor of Law, American University Washington College of Law.     
Thanks are due to Dean Mark Sargent, Villanova University School of Law and   
the Frances Lewis Law Center at Washington and Lee University School of Law   
for the research funding that supported the writing of this article; to Dean  
Claudio Grossman, American University Washington College of Law for research  
support for preparing an earlier version of this article for presentation at  
the Have We Ceased To Be a Common Law Country?: A Conversation on Unpublished,
Depublished, Withdrawn and Per Curiam Opinions Symposium held at the          
Washington and Lee University School of Law on March 18, 2005; to Bryce       
Coughlin, American University Washington College of Law J.D. 2006, and Sarah  
Stevenson, Villanova University School of Law J.D. 2007 for imaginative and   
tenacious research assistance; to my colleague Steve Chanenson for suggesting 
some obscure and useful sources; and to Associate Professor Joseph Pugliese,  
Department of Critical and Cultural Studies, Macquarie University, Sydney,    
Australia, for suggesting the utility of Sedgwick's Epistemology of the Closet
for my reading of Hart v. Massanari.

[FN1]. 1 William Butler Yeats, The Second Coming, in The Collected Works of   
W.B. Yeats 189 (Richard J. Finneman ed., 1989).

[FN2]. See Eve Kosofsky Sedgwick, Epistemology of the Closet 7  (1990)        
(describing the majority's statements in Bowers v. Hardwick that "the right to
engage in sodomy is 'deeply rooted in this Nation's history and tradition' or 
'implicit in the concept of ordered liberty' . . . [as], at best, facetious." 
(quoting Bowers v. Hardwick, 478 U.S. 186, 194 (1986))).

[FN3]. Herman Melville, Billy Budd, Sailor, in Pierre; Israel Potter; The     
Piazza Tales; The Confidence-Man; Uncollected Prose; Billy Budd 1351, 1418    
(Harrison Hayford & Merton M. Sealts, Jr. eds., Library of Am. 1984) (1962).

[FN4]. See, e.g., Richard S. Arnold, Unpublished Opinions: A Comment, 1 J.    
App. Prac. & Process 219, 219 (1999) (expressing discomfort about producing   
unpublished opinions); Penelope Pether, Inequitable Injunctions: The Scandal  
of Private Judging in the U.S. Courts, 56 Stan. L. Rev. 1435, 1450, 1487      
(2004) [hereinafter Pether, Inequitable Injunctions] (citing several judges   
expressing concern about unpublished opinions); Patricia M. Wald, The Rhetoric
of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 
1371, 1374 (1995) [hereinafter Wald, Rhetoric] (criticizing results of        
unpublished opinions); Patricia M. Wald, The Problem with the Courts:         
Black-Robed Bureaucracy or Collegiality Under Challenge?, 42 Md. L. Rev. 766, 
786 (1983) [hereinafter Wald, Problem] (asserting that publication is an      
essential judicial function).

[FN5]. See, e.g., William T. Hangley, Opinions Hidden, Citations Forbidden: A 
Report and Recommendations of the American College of Trial Lawyers on the    
Publication and Citation of Nonbinding Federal Circuit Court Opinions, 208    
F.R.D. 645, 664 (2002) (advocating for publication of nonbinding opinions);   
Tim Reagan et al., Federal Judicial Center, Citations to Unpublished Opinions 
in the Federal Courts of Appeals 15 (2005), available at http://              
www.fjc.gov/public/pdf.nsf/lookup/citatio2.pdf/$file/citatio2.pdf (presenting 
statistics that support assertion that trial lawyers favor publication);      
Lauren Robel, The Practice of Precedent: Anastasoff, Noncitation Rules, and   
the Meaning of Precedent in an Interpretive Community, 35 Ind. L. Rev. 399,   
407 tbl.2 (2002) (presenting statistics which show the percentage of lawyers  
who believe citation restrictions are a problem).

[FN6]. See, e.g., Robel, supra note 5, at 417 (advocating a ban on unpublished
opinions).

[FN7]. Patrick J. Schiltz, Much Ado About Little: Explaining the Sturm Und    
Drang over the Citation of Unpublished Opinions, 62 Wash. & Lee L. Rev. 1429  
(2005).

[FN8]. Even a circuit as (recently) permissive about the citation of          
unpublished opinions as the D.C. Circuit holds that "a panel's decision to    
issue an unpublished disposition means that the panel sees no precedential    
value in that disposition." D.C. Cir. R. 36(c)(2).

[FN9]. T.G.A. Nelson, Comedy: An Introduction to Comedy in Literature, Drama, 
and Cinema 30 (1990).

[FN10]. Penelope Pether, Measured Judgments?: Histories, Pedagogies, and the  
Possibility of Equity, 14 Law & Literature 489, 490 (2002).

[FN11]. Pether, Inequitable Injunctions, supra note 4.

[FN12]. Id. at 1441-42 n.20, 1445 (citing Brown v. Bd. of Educ., 349 U.S. 294 
(1955)).

[FN13]. Id. at 1442-83.

[FN14]. Id. at 1504-14.

[FN15]. Id. at 1483-1504.

[FN16]. Id. at 1444-65.

[FN17]. That habitus has been described as the "embodied experience" which    
makes members of particular cultures or professions "who they are." Pierre    
Bourdieu, The Logic of Practice 53 (1990). Bourdieu has written on legal      
professional subject formation. See generally Pierre Bourdieu, The Force of   
Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805 (1987).

[FN18]. See infra note 210 and accompanying text (recounting the Judicial     
Conference of the United States' consideration of proposed Federal Rule of    
Appellate Procedure 32.1 through its Standing Committee on Rules of Practice  
and Procedure and its Advisory Committee on Appellate Rules).

[FN19]. Proposed Rule 32.1 would prevent federal courts from banning citation 
of any of their unpublished opinions. Comm. on Rules of Practice & Procedure  
of the Judicial Conference of the U.S., Preliminary Draft of Proposed         
Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal 
Procedure 31 (2003).

[FN20]. Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001).

[FN21]. See supra note 19 and accompanying text (discussing proposed amendment
which would mandate the end of citation bans in the federal appellate courts).

[FN22]. See Pether, Inequitable Injunctions, supra note 4, at 1471            
(expressing grave doubt as to the amendment's chance of passage). The         
amendment has recently cleared apparently the most significant hurdle to its  
passage, approval by the United States Judicial Conference. News Release,     
Administrative Office of the U.S. Courts, Conference Memorializes Late Chief  
Justice Acts on Administrative, Legislative Matters (Sept. 20, 2005),         
available at http:// www.uscourts.gov/Press_Releases/judconf092005.html. But  
see infra note 210 (noting that the conference restricted the operation of the
proposed rule to opinions issued "on or after January 1, 2007").

[FN23]. See Reagan et al., supra note 5, at 3-19 (collecting evidence         
regarding support for unpublication reform).

[FN24]. See Pether, Inequitable Injunctions, supra note 4, at 1471 (listing   
opponents of unpublication rules).

[FN25]. See id. at 1470 n.170 (noting a writing campaign instigated by Judge  
Kozinski to preserve a public hearing on proposed FRAP 32.1).

[FN26]. See id. (referring to Judge Kozinski).

[FN27]. Thomas M. Devine & Donald G. Aplin, Abuse of Authority: The Office of 
the Special Counsel and Whistleblower Protection, 4 Antioch L.J. 5, 27 (1986).

[FN28]. A former colleague was issued an invitation to speak to the Ninth     
Circuit on this topic; he was subsequently asked to speak on a different      
topic. E-mail from Steve Wermeil, Associate Professor of Law, American        
University, Washington College of Law, to Penelope Pether, Professor of Law,  
Villanova University (June 14, 2005, 12:11 EST) (on file with the Washington  
and Lee Law Review).

[FN29]. This method draws on the work of Norman Fairclough, Gunther Kress, and
Michel Foucault.

[FN30]. Penelope Pether, Critical Discourse Analysis, Rape Law and the Jury   
Instruction Simplification Project, 24 S. Ill. U. L.J. 53, 59 (1999)          
[hereinafter Pether, Critical Discourse Analysis].

[FN31]. Id. at 60.

[FN32]. Id.

[FN33]. Id.

[FN34]. Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).

[FN35]. Id. at 905.

[FN36]. This divergence itself is in many ways a result of the power he       
asserts to legitimize modern institutionalized unpublication.

[FN37]. This quality has been ascribed to Judge Kozinski. Devine & Aplin,     
supra note 27, at 27.

[FN38]. Bourdieu, The Logic of Practice, supra note 17, at 53.

[FN39]. Sedgwick, supra note 2, at 6.

[FN40]. See Pether, Inequitable Injunctions, supra note 4, at 1441-42 & n.20  
(suggesting courts used unpublished opinions to discriminate against          
minorities).

[FN41]. See Sedgwick, supra note 2, at 7 (arguing that "obtuseness itself arms
the powerful against their enemies").

[FN42]. See id. at 11 (hypothesizing that "certain binarisms that structure   
meaning in a culture may be 'ineffaceably marked' by association with the     
modern crisis of homo/heterosexual definition").

[FN43]. Id. at 5.

[FN44]. See Peter Goodrich, Reading the Law: A Critical Introduction to Legal 
Method and Techniques 186-208 (1986) (discussing generally legal rhetoric).

[FN45]. Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001).

[FN46]. Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000).

[FN47]. Id.

[FN48]. Id.

[FN49]. Id.

[FN50]. Id.

[FN51]. Id. at 899, 905.

[FN52]. Christie v. United States, No. 91-2375MN, 1992 U.S. App. LEXIS 38446  
(8th Cir. Mar. 20, 1992) (per curiam).

[FN53]. Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000).

[FN54]. See Arnold, supra note 4, at 220-25 (discussing the designation of    
unpublished opinions as nonprecedential); Wald, Rhetoric, supra note 4, at    
1373-76 (same); Wald, Problem, supra note 4, at 783 n.41 (same).

[FN55]. Anastasoff, 223 F.3d at 899-904.

[FN56]. Id. at 899.

[FN57]. Anastasoff v. United States, 235 F.3d 1054, 1055 (8th Cir. 2000).

[FN58]. Id.

[FN59]. Weisbart v. United States, 222 F.3d 93 (2d Cir. 2000).

[FN60]. Anastasoff, 235 F.3d at 1056.

[FN61]. In re Rules of the United States Court of Appeals for the Tenth       
Circuit, Adopted Nov. 18, 1986, 955 F.2d 36 (10th Cir. 1992).

[FN62]. Hart v. Massanari, 266 F.3d 1155, 1160 (9th Cir. 2001).

[FN63]. Anastasoff v. United States, 223 F.3d 898, 899-900 (8th Cir. 2000).

[FN64]. Marbury v. Madison 5 U.S. (1 Cranch) 137, 177 (1803).

[FN65]. Anastasoff, 223 F.3d at 900.

[FN66]. Hart, 266 F.3d at 1174.

[FN67]. Anastasoff, 223 F.3d at 900.

[FN68]. Id.

[FN69]. See id. at 899-900 (stating that "every judicial decision is a        
declaration and interpretation of a general principle or rule of law," which  
is "authoritative to the extent necessary for the decision," and "must be     
applied in subsequent cases to similarly situated parties").

[FN70]. Id. at 900.

[FN71]. U.S. Const. art III, <section> 1, cl. 1.

[FN72]. Anastasoff v. United States, 223 F.3d 898, 900 (8th Cir. 2000)        
(citing Morton J. Horwitz, The Transformation of American Law: 1780-1860, at  
8- 9 (1977); J.H. Baker, An Introduction to English Legal History 227 (1990); 
Sir William Holdsworth, Case Law, 50 L.Q.R. 180 (1934); 1 William Blackstone, 
Commentaries *69 (1765)).

[FN73]. Id.

[FN74]. Id.

[FN75]. Id.

[FN76]. Id. at 900 n.6.

[FN77]. Id. at 901 n.7 (citing Frederick Schauer, Precedent, 39 Stan. L. Rev. 
571, 595-602 (1987)).

[FN78]. Id. at 901.

[FN79]. Id.

[FN80]. Id.

[FN81]. Id. at 901 n.9.

[FN82]. Id. at 901 n.8.

[FN83]. Id. at 901.

[FN84]. Id.

[FN85]. Id. (quoting 1 William Blackstone, Commentaries *258-59).

[FN86]. See id. at 901-03 nn.10-13 (quoting numerous sources that state that  
judicial adherence to precedent is a guard against arbitrariness and threats  
to liberty).

[FN87]. Id. at 903 n.14.

[FN88]. Id. at 903-04 n.14.

[FN89]. See id. at 903-04 (quoting Joseph Story, Commentaries on the          
Constitution of the United States <section><section> 377-78 (1833)).

[FN90]. Id. at 904.

[FN91]. Id.

[FN92]. Arnold, supra note 4, at 223-24.

[FN93]. Hart v. Massanari, 266 F.3d 1155, 1159 (9th Cir. 2001).

[FN94]. Id. at 1159.

[FN95]. Id.

[FN96]. Rice v. Chater, 98 F.3d 1346, 1996 WL 583605, at *1 (9th Cir. Oct. 9, 
1996).

[FN97]. Id. at *1-2.

[FN98]. See id. at *1-3 (stating that appellant had been diagnosed as a       
malingerer by a psychologist appointed by the ALJ who heard her application   
for supplemental security income disability benefits, and was refused a       
supplemental hearing which would have enabled her to engage with the          
psychologist's report, which the ALJ had decided to admit into evidence       
although it had been obtained post-hearing). Flaws in the quality of the      
preparation of her case meant that the expert who was available to testify    
about her mental impairments was not qualified to do so. Id. at *6-7. Other   
qualified experts had not made the formal diagnosis necessary to constitute   
"medical evidence." Id. These facts, combined with the ALJ's conclusions about
Ms. Rice's honesty led the Ninth Circuit to affirm the magistrate judge's     
grant of a motion for summary judgment to the Commissioner of the Social      
Security Administration. Id. at *7-8.

[FN99]. See Hart v. Massanari, 266 F.3d 1155, 1159 (9th Cir. 2001)  (arguing  
that the speculations of the Rice court were mistaken).

[FN100]. Id. at 1159-60 (emphasis in original).

[FN101]. See id. at 1160 n.3 (stating that Story's argument about precedent   
was confined to the supremacy of the Supreme Court over lower courts (quoting 
Joseph Story, Commentaries on the Constitution of the United States <section> 
<section> 376-78 (1833))). Judge Arnold appears to get the better of the      
contest here. While Judge Kozinski is right that the context concerns the     
power of the Supreme Court, it is specifically directed towards the Supreme   
Court's pre-eminent power in federal constitutional judicial review. Story    
goes on to make a generalized claim about the operation of precedent in "the  
whole system of jurisprudence" in a "government of laws, and not of men."     
Story, supra.

[FN102]. Hart, 266 F.3d at 1160.

[FN103]. Judge Kozinski makes this point. Id. at 1179.

[FN104]. See id. at 1160-62 nn.4-5 (arguing that Article III does not limit   
the power of courts to issue nonprecedential opinions).

[FN105]. See id. at 1160-62 (enumerating the common practices of modern courts
that differ from earlier courts).

[FN106]. Id. at 1161 (citing Henry M. Hart, Jr., The Power of Congress to     
Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.  
L. Rev. 1362, 1363-64 (1953)).

[FN107]. Id.

[FN108]. Id. at 1162.

[FN109]. See id. (noting changes in the law since the eighteenth century).

[FN110]. See id. at 1162 n.6 (discussing the question of what weight was given
to precedent at the time of the Framing).

[FN111]. Id. at 1163.

[FN112]. Id. at 1163 n.6 (opining that "[n]ine judges speaking separately may 
well agree on the outcome of a case, but they cannot give the kind of specific
guidance as to the conduct of future cases that can be found in a single      
opinion speaking for the court").

[FN113]. Id. at 1163.

[FN114]. Id.

[FN115]. Id. at 1163 n.9.

[FN116]. Id. at 1164 n.8.

[FN117]. See id. at 1164-65 & nn.10, 13 (quoting and citing R.W.M. Dias,      
Jurisprudence 30-31 (1964); Theodore F.T. Plucknett, A Concise History of the 
Common Law 151, 162-63, 348 (1956)) (noting that a hierarchy of courts is a   
necessary prerequisite to the precedential value of case law).

[FN118]. See Hart v. Massanari, 266 F.3d 1155, 1165-67 nn.9, 10, & 15-18  (9th
Cir. 2001) (citing numerous authorities for the proposition that common law   
judges had many different justifications for not following precedent).

[FN119]. See id. at 1165 n.11, 1167 n.19 (stating that the practice of law by 
laymen devalued the precedential import of case law).

[FN120]. See id. at 1165 n.13 (arguing that the fact that decisions in the    
Exchequer Court were considered binding precedent demonstrates that decisions 
outside that court were not generally considered binding).

[FN121]. Id. at 1165.

[FN122]. Id. at 1165-66 & n.14.

[FN123]. See id. at 1172 (stating that "controlling authority has much in     
common with persuasive authority").

[FN124]. See id. at 1165 n.13 (noting the persuasive nature of common law     
decisions).

[FN125]. See Bourdieu, The Logic of Practice, supra note 17, at 52 (defining  
habitus as a system of structured, structuring dispositions).

[FN126]. See Hart v. Massanari, 266 F.3d 1155, 1167 n.20 (9th Cir. 2001)      
(stating that at time of the Framing, the concept of precedent was subject to 
debate).

[FN127]. See id. at 1167 (stating that common law "was a reflection of custom,
and custom had built-in flexibility").

[FN128]. See id. at 1168 (stating that lawyers "began to believe that judges  
made, not found, the law").

[FN129]. Id.

[FN130]. See id. at 1174 n.30 (providing a summary of the role that persuasive
and binding authority plays in judicial opinions).

[FN131]. See id. at 1165 n.13 (claiming that at common law, binding precedent 
was only created by the Exchequer Chamber, and that circuit judges regularly  
decided cases without referring to reporters).

[FN132]. See id. at 1170-73 (explaining that Supreme Court opinions serve as  
binding precedent for all federal courts, and circuit courts must follow      
previous decisions within the circuit, unless overruled by the Supreme Court  
or the circuit in an en banc ruling, but that the circuit courts are not bound
by the decisions of other circuits).

[FN133]. Id. at 1171.

[FN134]. Id.

[FN135]. Id. at 1171 n.26.

[FN136]. See id. at 1174, 1176 n.30 (stating that courts would operate much   
less efficiently if not required to follow binding authority, and noting that 
in California "court of appeal panels are not bound by the opinions of other  
panels, even those within the same district").

[FN137]. See id. at 1174-75 (stating that binding precedent did not play the  
same role in common law courts, or courts at the time the Constitution was    
written, as it does today).

[FN138]. Id.

[FN139]. Id.

[FN140]. Id. Plucknett's discussion is an historical one that articulates the 
passage from the "Year Book period" to "The Age of the Reporters."            
Specifically, in a complex and fairly sophisticated discussion about the      
changing roles of "custom" and "precedent" in constituting the law, he        
differentiates between the practice of the Year Book period, during which     
"cases [were] used only as evidence of the existence of a custom of the       
court," and the view that emerged in the seventeenth century that a decision  
of all the judges of England in the Exchequer Chamber "was a binding          
precedent." Theodore F.T. Plucknett, A Concise History of the Common Law      
347-48 (5th ed. 1956). Plucknett's discussion continues with a look at the    
modern view of binding precedent which emerged in the nineteenth century. Id. 
at 349-50. He also notes elsewhere that "[w]hile it lasted, the Court of      
Exchequer Chamber did much to take the place of a system of appellate courts" 
before such a system developed, although it differed from them in only being  
able to be set in train by judges rather than parties. Id. at 163. Thus,      
Plucknett's point is about the authoritativeness of texts and courts and about
the complexities of the paradox of common law's dual origins in "custom" and  
the unitary law of the land rather than of "law" in the contemporary sense. I 
should note both that I am aware that adjudging competing truth claims is     
risky in context and that it is not my point here. My point is that within a  
range of tolerance shaped by the habitus of lawyers and the judges some of    
them become, precedent is as binding, persuasive, or interpretable as one     
chooses to make it. Further, institutional decisions by courts about the      
degree to which they formally bind successor or inferior courts or for that   
matter decisions akin to those a court like the Court of Exchequer Chamber or 
the Supreme Court makes when it settles issues of legal interpretation about  
which there are differing views between lesser courts or among judges (all of 
which we will assume for the sake of argument more or less approach the law   
ethically rather than what I will-tendentiously-call tendentiously) are of a  
different order from judges being able to pick and choose which of their own  
decisions are on the books and to which they are obliged to pay any           
interpretive fealty and which they are free to depart from in like            
circumstances. There is also a question of selective citation as well as      
interpretation of precedents. See, e.g., Goodrich, supra note 44, at 71-72    
(summarizing the history of precedential citation in England). Goodrich notes:

    It was, however, only with the aid of principles drawn from the academies 
and the civil law, that the common law [in England, which, it is worth noting,
unlike the United States does not have a written constitution and where courts
applying British law have no power to declare acts of government              
unconstitutional] could be developed into a coherent and largely              
self-sufficient system of legal decision-making. In 1861, in Beamish v.       
Beamish . . . the House of Lords decided that precedent decisions of the House
were to be binding in future cases, even upon the House itself. . . . [This]  
view . . . remained the law until in 1966 the House of Lords issued a Practice
Statement declaring that, in a limited number of circumstances, the House     
would no longer be bound to follow its earlier decisions. The lower courts,   
the Court of Appeal in particular, however, remain bound by their own earlier 
decisions and the system of precedent in general is still doctrinally stated  
to be one of binding or strict precedent. 
Id. Or at least it was until the British courts followed the lead of the U.S. 
in 2001 and required lawyers to seek courts' permission before citing         
unreported opinions to them. See Pether, Inequitable Injunctions, supra note  
4, at 1439 n.11 (noting the new limitation on citing unreported opinions).

[FN141]. Hart v. Massanari, 266 F.3d 1155, 1165 n.13 (9th Cir. 2001).

[FN142]. Id. at 1174.

[FN143]. Id.

[FN144]. Id. at 1175.

[FN145]. Id. at 1174-75.

[FN146]. Planned Parenthood of Southeastern Pa. v. Casey, 510 U.S. 1309       
(1994).

[FN147]. See Hart v. Massanari, 266 F.3d 1155, 1175 n.31 (9th Cir. 2001)      
(stating that rigid adherence to the principle of binding precedent "forces   
judges in certain instances to act in ways they may consider to be contrary to
the Constitution").

[FN148]. Id.

[FN149]. Id. at 1162 n.6.

[FN150]. See, e.g., Pether, Inequitable Injunctions, supra note 4, at 1487    
(noting that some judges agree not to dissent in a case as long as the opinion
is not published).

[FN151]. Hart, 266 F.3d at 1176.

[FN152]. Id.

[FN153]. Id. at 1177. The question of this emergent third category of judicial
decisions, "judgment orders," is a matter for another day, but the recent     
report emanating from the Federal Judicial Center on the proposed rule change 
suggests that it is here and not in unpublished opinions that most of the     
decisions of the federal court are currently "memorialized" (if I might be    
excused a pun that would be merely exasperated were the stakes of judicial    
ethics in a constitutional system providing for judicial review of the        
constitutionality of governmental actions not so high). Reagan et al., supra  
note 5, at 70.

[FN154]. Hart v. Massanari, 266 F.3d 1155, 1178 n.35 (9th Cir. 2001).

[FN155]. See, e.g., Pether, Inequitable Injunctions, supra note 4, at 1487- 88
(pointing to an example in which the decision whether to publish an opinion   
was based on which clerk needed to author an opinion to aid in future         
employment searches, and to cases where judges have used unpublished opinions 
as a means of punishing litigants and lawyers).

[FN156]. See David S. Law, Strategic Judicial Lawmaking: Ideology,            
Publication, and Asylum Law in the Ninth Circuit, 73 U. Cin. L. Rev. 817, 864-
66 (2005) (concluding that the decision whether or not to publish a judicial  
opinion has a significant impact on how some judges vote on the merits of a   
case).

[FN157]. Hart, 266 F.3d at 1177-78.

[FN158]. Circuits can apparently indefinitely defer compliance with the       
requirement.

[FN159]. E-Government Act of 2002, Pub. L. No. 107-347 (codified at 44 U.S.C  
<section> 3501 Sec. 205(a)(5)).

[FN160]. United States v. Rivas, No. 03-10594 (9th Cir. Oct. 14, 2004),       
available at http://www.ca9.uscourts.gov/coa/memdispo.nsf/pdfview/071505/     
$File/03-10594.pdf. Many unpublished opinions merely affirm without giving any
reasons for the decision. See Pether, Inequitable Injunctions, supra note 4,  
at 1465 n.139 (pointing to estimates that concluded that about 7% of all      
opinions issued in the federal courts of appeal are one-word opinions).

[FN161]. In re Complaint of Judicial Misconduct, No.03-89031, slip op. 29, 34 
(9th Cir. Sept. 29, 2005) (Kozinski, J., dissenting) (memorandum).

[FN162]. See, e.g., 4 William Blackstone, Commentaries *416 (mentioning the   
Saxon efforts to reduce the power of local courts and extend the jurisdiction 
of the King's courts); Frederick Pollock & Frederick William Maitland, The    
History Of English Law Before The Time Of Edward I 79 (2d ed., Little Brown & 
Co. 1899) (noting that a "good deal" of English law was in writing at the time
of the Norman Conquest).

[FN163]. See, e.g., J.G.A. Pocock, The Ancient Constitution And Feudal Law: A 
Study Of English Historical Thought in the Sixteenth Century 31 (2d ed. 1987).

[FN164]. Goodrich, supra note 44, at 42 (1986).

[FN165]. Greg Hurst, Lords Revolt Over Anti-terror Bill, Times (London), Mar. 
8, 2005, at 6.

[FN166]. See N.Z. Drivers' Ass'n v. N.Z. Road Carriers, [1982] 1 N.Z.L.R. 374,
390 (questioning "the extent to which in New Zealand even an Act of Parliament
can take away the right of citizens to resort to the ordinary Courts of law   
for determination of their rights"). This is a clear articulation of a view of
constitutional judicial power and responsibility perhaps obliquely suggested  
in Carolene Products' over-determined footnote 4. See United States v.        
Carolene Prods. Co., 304 U.S. 144, 153 (1938) (describing a possible "narrower
scope for operation of a presumption of unconstitutionality when legislation  
appears on its face to be within a specific prohibition of the Constitution"  
(emphasis added)).

[FN167]. See Rumsfeld v. Padilla, 542 U.S. 426, 451 (2004) (reversing and     
remanding consideration of Padilla's petition for writ of habeas corpus for   
entry of an order of dismissal without prejudice on jurisdictional grounds,   
and thus not reaching the Government's appeal for review on the merits of the 
Second Circuit Court of Appeals' decision to grant Padilla the writ of habeas 
corpus); Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (holding that due process
requires a citizen held in the United States as an enemy combatant "must      
receive notice of the factual basis for his classification [as an enemy       
combatant], and a fair opportunity to rebut the Government's factual          
assertions before a neutral decisionmaker").

[FN168]. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464        
(D.D.C. 2005) (holding, inter alia, that the Fifth Amendment right to due     
process applied to detainees held as "enemy combatants" at Guantanamo Bay, and
that the petitioners had stated a claim for violation of due process based in 
insufficiency of notice of factual bases for their detention and denial of the
opportunity to challenge it). But see Hamdan v. Rumsfeld, 415 F.3d 33, 36     
(D.C. Cir. 2005), cert. granted, 2005 WL 2922488 (U.S. Nov. 7, 2005)          
(reversing District Court decision that Hamdan "could not be tried by a       
military commission unless a competent tribunal determined that he was not a  
prisoner of war under the 1949 Geneva Convention"); Khalid v. Bush, 355 F.    
Supp.2d 311, 321, 330 (D.D.C. 2005) (holding, inter alia, that the separation 
of powers made it impermissible for courts to inquire into the conditions of  
executive detention of non-resident aliens captured and detained outside the  
United States, and that these detainees have no legally cognizable rights).   
See also Al-Joudi v. Bush, No. Civ.A. 05-301 (GK), slip. op. 2005 WL 774847,  
at *6 (D.D.C. Apr. 4, 2005) (granting Saudi detainees' motion for a temporary 
restraining order and preliminary injunction requiring respondents to provide 
counsel for petitioners and the court with thirty days advance notice of any  
intended removal from Guantanamo); Qassim v. Bush, 382 F. Supp. 2d 126, 129   
(D.D.C. 2005) (ordering hearing for purposes of determining conditions under  
which Uighur Guantanamo detainees who had been found not to be enemy          
combatants would live pending their relocation to another country); Associated
Press v. U.S. Dep't of Def., 2005 WL 2065171, at *2 (S.D.N.Y. 2005) (ruling   
that Department of Defense required to question detainees as to whether they  
wished information about their identities to be released to Associated Press).
But see Almurbati v. Bush, 366 F. Supp. 2d 72, 82 (D.D.C. 2005) (denying      
motion by Bahraini detainees for preliminary injunction prohibiting           
respondents from transferring any of them from Guantanamo without first       
providing advance written notice); Al-Marri v. Hanft, 378 F. Supp. 2d 673,    
680, 682 (D.S.C. 2005) (holding that the Authorization for Use of Military    
Force allowed for a Quatari national's detention and denying his motion for   
summary judgment on his petition for the writ of habeas corpus); Paracha v.   
Bush, 374 F. Supp. 2d. 118, 121 (D.D.C. 2005) (denying Guantanamo detainee's  
motion for preliminary injunction ordering his removal from isolation and     
prohibiting his rendition to the custody of another country where he may face 
the threat of torture and motion for permission to proceed and appeal in forma
pauperis); O.K. v. Bush, 377 F. Supp. 2d 102, 118 (D.D.C. 2005) (denying      
Canadian national detainee at Guantanamo's motion for preliminary injunction  
barring government from subjecting him to torture or interrogation and a      
preliminary injunction ordering the government to provide his counsel and the 
court with thirty days' notice prior to transferring him to a foreign         
country); Padilla v. Hanft, 423 F.3d 386, 397 (4th Cir. 2005) (holding that   
the President possessed authority to detain enemy combatant).

[FN169]. See Tony Mauro, Judicial Conference Supports Citing Unpublished      
Opinions, Legal Times, Sept. 18, 2005, at 12 (quoting then Judge Roberts as   
saying that lawyers "ought to be able to tell a court what it has done"); see 
also 28 U.S.C. <section> 2072(a) (stating "[t]he Supreme Court shall have the 
power to prescribe general rules of practice and procedure for . . . courts of
appeals").

[FN170]. See generally Wald, Rhetoric, supra note 4; Wald, Problem, supra note
4.

[FN171]. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir.    
2005).

[FN172]. See id. at 987 (recommending a "case by case" approach to a possible 
constitutional qualified privilege for journalists in the grand jury context  
(citing Branzburg v. Miller, 408 U.S. 665, 710 (1972) (Powell, J.,            
concurring))).

[FN173]. See id. at 989 ("[A]uthorizing federal courts to develop evidentiary 
privileges in federal question cases according to 'the principles of the      
common law as they may be interpreted . . . in the light of reason and        
experience."').

[FN174]. And who has also criticized citation bans, although not the binary   
opposition of precedential and unprecedential decisions. See David S. Tatel,  
Some Thoughts on Unpublished Decisions, 64 Geo. Wash. L. Rev. 815, 816-17     
(1996) (evaluating potential advantages and disadvantages of lifting citation 
bans).

[FN175]. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir.    
2005).

[FN176]. Id. at 995 (citing Trammel v. United States, 445 U.S. 40, 47  (1980) 
).

[FN177]. There is the alternative view that the redactions (which in any event
in the context of alleged illegal leaks from the Executive are perhaps less   
problematic than they seem at first blush to be) explicitly foreground        
silence, rather than covering absences in public information with claims that 
only the litigants have an interest in the information and that it is in any  
event both available to them and to the public. Further, this is all in a     
context in which federal appellate courts issue unpublished memorandum        
decisions which give no reasons for the court's decision and that some        
circuits' (including the 9th) implementation of the E-Government Act of 2002, 
Pub. L. No. 107-347 (codified at 44 U.S.C <section> 3501 Sec. 205(a)(5))'s    
requirement that their opinions be published on their websites in a "text     
searchable format" involves them listing on their websites memorandum opinions
that may only be meaningfully searched if one knows the matter number, the    
case name, or the date of disposition, providing no other means of searching  
the database of unpublished opinions. I should also note that the differing   
"truth claims" of Judges Arnold and Kozinski on whether common law judges     
discover or make the law are both from my perspective neither here nor there. 
The critical difference between their versions of the doctrine of precedent is
rather their competing views about the power of courts to disregard their     
earlier decisions by fiat as a result of the regime of modern                 
institutionalized unpublication. Further, there is in this context a real if  
superficially subtle difference between judges who seek to curtail the power  
of executive government to interfere with citizens' protection from its unfair
use of power and those who seek to assert their own power to behave unfairly, 
beyond the reach of any check or balance. I should also note my awareness of  
double irony inherent in the fact that what Miller was seeking to protect was 
a right to keep secret information from the Executive which had allegedly in  
its turn leaked "secret" information.

[FN178]. See Pether, Critical Discourse Analysis, supra note 30, at 60        
(citing to unpublished manuscript).

[FN179]. See, e.g., Wald, Rhetoric, supra note 4, at 1374 (opining that modern
institutionalized unpublication "allows for deviousness and abuse").

[FN180]. In 2000, it averaged 79.8 %; the Fourth Circuit led at 90.5%. See    
Pether, Inequitable Injunctions, supra note 4, at 1436, 1437 n.5, 1465 n.139  
(pointing to estimates provided by Judge Margaret McKeown of the Ninth        
Circuit).

[FN181]. See id. at 1465-67 nn.141 & 144 (explaining that court websites do   
not often provide a convenient means of searching unpublished opinions, and   
that only those unpublished opinions that are released for publication ever   
make it into the Federal Appendix, LEXIS, or Westlaw); see also Hart v.       
Massanari, 266 F.3d 1155, 1169 (9th Cir. 2001) (explaining that searching for 
unpublished decisions is difficult). Many lawyers who claim that they         
routinely search unpublished opinions on LEXIS or Westlaw are clearly not     
aware of the likely limitation of the universe of material they have access   
to.

[FN182]. These generally include res judicata, collateral estoppel, law of the
case, and double jeopardy.

[FN183]. See Pether, Inequitable Injunctions, supra note 4, at 1536-79        
(citing publication and citation rules that govern state courts).

[FN184]. Id.

[FN185]. See id. at 1445-64, 1449 n.62 (providing an overview of the          
development of institutionalized unpublication and screening in federal       
courts).

[FN186]. See id. at 1444 (noting that during the 1960s and 1970s, judges      
argued that indexing all judicial opinions could be an overwhelming task).

[FN187]. See id. at 1516 (pointing to courts' reluctance to provide adequate  
search tools for unpublished opinions).

[FN188]. See id. at 1443-44 (noting the Federal Judicial Conference's use of  
this rationale in the 1960s and 1970s).

[FN189]. See id. at 1487 n.288 (explaining that many practicing lawyers and   
judges research unpublished opinions when possible); Reagan et al., supra note
5, at 16-17 (noting that a large percentage of lawyers find that unpublished  
opinions are useful when they are allowed to cite them).

[FN190]. See Pether, Inequitable Injunctions, supra note 4, at 1444-45, 1517  
n.481 (explaining the influence that the increase in civil rights and prisoner
pro se appeals had on decisions not to publish opinions).

[FN191]. See id. at 1487, 1517 n.288 (pointing out that many lawyers and      
judges read unpublished opinions).

[FN192]. See, e.g., Hart v. Massanari, 266 F.3d 1155, 1177 nn.32-33 (9th Cir. 
2001) (stating that few, if any, courts have the resources to write           
publishable opinions in every case).

[FN193]. See Pether, Inequitable Injunctions, supra note 4, at 1533           
(mentioning that judges in other common law "first-world democracies" rely    
less on clerks than do United States federal judges).

[FN194]. See id. at 1518 n.491, 1532-33 (noting the opposition to an increase 
in the number of federal judges that exists in some parts of the federal      
bench).

[FN195]. See Alex Kozinski, Puzznic and Other Video Enigmas, Wall St. J., Mar.
20, 1991, at A20; Guide to Nintendo Shopping, Wall St. J., Jan. 31, 1990, at  
A16 (exemplifying Judge Kozinski's other writing projects).

[FN196]. Sedgwick, supra note 2, at 1.

[FN197]. Id. at 2.

[FN198]. Pether, Inequitable Injunctions, supra note 4, at 1441 n.20.

[FN199]. Sedgwick, supra note 2, at 32.

[FN200]. Id. at 2.

[FN201]. Id. at 3.

[FN202]. Id. at 12 (emphasis in original).

[FN203]. Id. at 14.

[FN204]. Id. at 9.

[FN205]. "I practiced race discrimination law for many years and found that   
many district court opinions were available only from the Race Relations Law  
Reports and did not appear in the F. Supp. It seemed likely that southern     
district judges were reluctant to send those opinions to West. Had RRLR not   
aggressively sought to discover all race-related opinions we would have been  
denied access to important information." E-Mail from Brian K. Landsberg,      
Professor of Law, University of the Pacific, McGeorge School of Law, to       
Penelope Pether, Professor of Law, American University, Washington College of 
Law (Sept. 17, 2004, 16:36:52 EST) (on file with the Washington and Lee Law   
Review).

[FN206]. Sedgwick, supra note 2, at 9.

[FN207]. Id. at 10.

[FN208]. Id.

[FN209]. See infra note 210 (describing Judge Kozinski's efforts to prevent a 
proposed rule that would bar federal courts from forbidding citations to any  
of their opinions, orders, judgments, or other written dispositions).

[FN210]. These proposed reforms would see the adopting of proposed  Federal   
Rule of Appellate Procedure 32.1, which would prevent Federal Courts from     
banning citation of any of their "judicial opinions, orders, judgments, or    
other written dispositions." On May 22, 2003, the Advisory on Appellate Rules,
an advisory committee of the Federal Judicial Conference, reported the        
proposed rule to the Conference's Standing Committee on Rules of Practice and 
Procedure, which then sought public comment and conducted hearings on the     
proposed rule. Judge Kozinski apparently instigated a campaign of letter      
writing designed to generate and document opposition to the Rule, and         
intervened with the Solicitor General to prevent Justice Department support   
for the rule change. Nonetheless, the Advisory Committee voted on Apr. 14,    
2004, to recommend the Rule change to the Full Rules Committee of the         
Conference. See Pether, Inequitable Injunctions, supra note 4, at 1470-71     
nn.170, 174 (2004) (recounting the events that preceded the rule's passage).  
On June 16, 2004, the Standing Committee returned the rule to the Advisory    
Committee, directing it to generate empirical data to determine whether the   
arguments of the proponents or opponents of the rule change were better       
supported. See generally Brent Kendall, Citation-Rule Change Hits Obstacle,   
Daily J., June 18, 2004, at http:// www.nonpublication.com/kendall.htm. On    
June 17, 2005, at 2:03 p.m., the author received a voicemail message from Tim 
Reagan, Senior Research Associate of the Federal Judicial Center, informing   
her that the Standing Committee had voted to approve the Appellate Advisory   
Committee's Proposed Rule Change permitting citation of unpublished opinions. 
The full Judicial Conference voted in favor of the rule change on September   
20, 2005. The proposed Rule change now must be voted on by the United States  
Supreme Court, and Congress. Patrick Schiltz, the Reporter for the Advisory   
Committee, had said of an earlier version of the proposed rule change that it 
"will be very controversial," and Judge Alito, the Chair of the Advisory      
Committee, also referring to the original Justice Department proposal for the 
rule change, indicated that the chief judges of the circuits were divided on  
it and that several circuits were concerned about it. See Pether, Inequitable 
Injunctions, supra note 4, at 1470-71 n.170 (noting comments of several       
members of the committee that considered the proposed rule change). The       
Judicial Conference vote seems to have been the fruit, in part, of Judge      
Alito's support and of the research done by the Federal Judicial Center at the
Advisory Committee's request.

[FN211]. Hart v. Massanari, 266 F.3d 1155, 1177 (9th Cir. 2001).

[FN212]. But see supra note 195 (giving examples of Judge Kozinski's          
extracurricular writing from the early 1990s: reviews of video games for The  
Wall Street Journal).

[FN213]. Hart, 266 F.3d at 1176-77.

[FN214]. Browsing those opinions currently enjoying their thirty days of      
crepuscular illumination on the Ninth Circuit's website suggests that "less"  
is often the appropriate qualifier.

[FN215]. Hart, 266 F.3d at 1178. See also Joseph Pugliese, Subcutaneous Law:  
Embodying the Immigration Amendment Act of 1992, 21 Australian Feminist L.J.  
23, 25 (2004) (noting that "'[a] letter,' writes Derrida, 'is always and a    
priori intercepted, . . . the "subjects" are neither the senders nor the      
receivers of messages. . . . The letter is constituted by its interception"').
Or by its dissentient, or disrespectful, translation and interpretation.

[FN216]. Sedgwick, supra note 2, at 10.

[FN217]. Hart v. Massanari, 266 F.3d 1155, 1177-78 (9th Cir. 2001).

[FN218]. Id. at 1178.

[FN219]. Id. at 1172.

[FN220]. Devine & Aplin, supra note 27, at 27.

[FN221]. Hart, 266 F.3d at 1174.

[FN222]. Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004, at 10.

[FN223]. William T. Hangley, Opinions Hidden, Citations Forbidden: Report and 
Recommendations of the American College of Trial Lawyers on the Publication   
and Citation of Nonbinding Federal Circuit Court Opinions, 208 F.R.D. 645, 651
(2002).

[FN224]. Hangley, supra note 223, at 651 (emphasis in original).

[FN225]. Hangley notes that "[c]onversations with a number of district court  
judges disclose that their 'window picking' procedures are anything but       
uniform. Some judges select the opinions they consider most significant for   
reporter publication, some leave that task to the clerks, and others leave the
entire selection process to West Publishing." Pether, Inequitable Injunctions,
supra note 4, at 1473 (citing Hangley, supra note 223, at 660 n.45). "These   
practices can make a difference: where single judges can decide whether to    
publish, fewer decisions are consigned to unpublication; Where a majority of  
judges must decide this, unpublication levels are the highest. Another        
difference in the practices courts adopt for handling unpublished opinions is 
that some courts have a published procedure that allows for parties to        
petition the court to publish an unpublished opinion. There is evidence that  
still other courts allow this in the absence of a publicly promulgated rule.  
Once again, this enables the selective manipulation of precedent by           
well-informed litigants." Pether, Inequitable Injunctions, supra note 4, at   
1473-74 (internal citations omitted).

[FN226]. The clerk is also likely thoroughly infected with a judicial culture 
that is angered by and despises the litigants and matters characteristically  
tracked in this way, and is beholden to the judges who hire her for           
recommendation for future employment.

[FN227]. Pether, Inequitable Injunctions, supra note 4, at 1492 n.314.

[FN228]. See id. at 1486 n.287 (detailing student's search).

[FN229]. Id. at 1486, 1537.

[FN230]. Id. at 1486 n.287. There is a very useful, if vulgar, Australian     
expression which aptly describes what happened to Mr. Morris here: He was     
"treated like a mushroom," that is, "fed on bullshit and kept in the dark." He
was also expected to expend a lot of (likely fruitless) energy on his         
inconvenient request for the opinions in the face of an evident falsehood,    
proceeding from a court, about why they were not available to a member of the 
public.

[FN231]. E-Government Act of 2002, Pub. L. No. 107-347 (codified at 44 U.S.C  
<section> 3501 Sec. 205(a)(5)) (requiring, apparently, that federal court     
opinions be published on court websites in "text searchable format").

[FN232]. United States Court of Appeals for the Ninth Circuit webpage, at     
http://www.ca9.uscourts.gov/, (last visited Oct. 22, 2004) (on file with the  
Washington and Lee Law Review.) The deletion policy does not seem to have been
assiduously followed, as at least some opinions more that 30 days old are on  
the website.

[FN233]. As is the case with the Sixth and Seventh Circuits.

[FN234]. See Pether, Inequitable Injunctions, supra note 4, at 1466-68 & n.145
(detailing legal publishers' power to regulate access to and the content of   
unpublished opinions).

[FN235]. See id. at 1468 (discussing the hegemony of LEXIS and Westlaw in the 
legal publishing industry).

[FN236]. The system includes both published and unpublished opinions.

[FN237]. See Pether, Inequitable Injunctions, supra note 4, at 1515-17        
(discussing the unequal access to unpublished opinions exacerbated by courts' 
preferential treatment of LEXIS and Westlaw and the advantages their expensive
services provide to frequent and often privileged litigants). See generally   
J.P. Morgan Securities Ltd, Equities Research, U.S. Legal Publishing Industry:
A Growth Story? 3, 5 (2002). Ian Gallacher, Finding the Law: Introducing the  
Legal Research Curriculum at the Washington College of Law (unpublished       
manuscript, copy on file with the author).

[FN238]. See supra note 233 and accompanying text (explaining that memoranda  
opinions on the websites of the Sixth, Seventh, and Ninth circuits are only   
searchable by party name, date, or matter number).

[FN239]. See Pether, Inequitable Injunctions, supra note 4, at 1440-41 n.20   
(introducing the argument that "the paradigm of private judging replaced      
legalized racial discrimination as a structural means for U.S. common law; to 
exclude 'others' from its protection").

[FN240]. See id. at 1505-07 nn.402-04 (citing evidence that unpublished       
opinions form part of a system structured to discriminate against             
"disadvantaged groups").

[FN241]. See id. at 1483-88 (discussing unpublished opinions' negative effects
on the rule of law).

[FN242]. See id. at 1511 (arguing that "[j]ust as the poor and other          
comparatively powerless litigants are disadvantaged by unpublication,         
depublication, and stipulated withdrawal of judicial opinions, so repeat      
players and the privileged . . . are advantaged by . . . private judging").

[FN243]. Id.

[FN244]. See generally Penelope Pether, Negotiating the Structures of         
Violence; or, On Not Inventing "The Sullivans," 15 Soc. Semiotics 5, 23-26    
(2005); Penelope Pether, Praxis; or the Benefits of Shedding Hostility to     
Theory, "The Language of Law," Forum, 2 Law, Culture and the Humanities       
(forthcoming 2006) [hereinafter Pether, Praxis] (presenting conflicting quotes
on the quality of unpublished opinions and evidence of the deficient research 
skills of judicial clerks) (on file with the Washington and Lee Law Review).

[FN245]. See Pether, Praxis, supra note 244 (discussing evidence of clerks and
staff attorneys' inadequate research and reasoning skills).

[FN246]. See Pether, Inequitable Injunctions, supra note 4, at 1462 n.132     
(describing the culture in which appellate court clerks operate) (citing Joe  
S. Cecil & Donna Stienstra, Deciding Cases Without Argument: An Examination of
Four Courts of Appeals, 1987 WL 123661 (F.J.C. 1985)).

[FN247]. Edward S. Adam, A Market-based Solution to the Judicial Clerkship    
Selection Process, 59 Md. L. Rev. 129, 137 n.57 (2000) (citing Tony Mauro,    
Corps of Clerks Lacking in Diversity, USA Today, Mar. 13, 1998, at A12).

[FN248]. Alex Kozinski & Fred Bernstein, Clerkship Politics, 2 Green Bag      
57-59, 62-63, 2d Series, Vol. 2, No. 1 (Autumn 1998), available at http://    
www.greenbag.org/Kozinski_Dialogue.pdf.

[FN249]. See generally Law, supra note 156.

[FN250]. Reagan et al., supra note 5, at Appendix A.

[FN251]. This is of a piece with the recently revealed practice of the        
district court for the Southern District of Florida running a "secret docket" 
to hide cases from public scrutiny. United States v. Ochoa-Vasquez, 428 F.3d  
1015, 1024 (11th Cir. 2005).

[FN252]. See, e.g., Reagan et al., supra note 5, Judge 7-2 at 85 (stating that
the judge would write shorter orders stating, for example, that the "evidence 
is sufficient" with no further explanation); id. Judge 7-1 at 85 (explaining  
that the judge would be more likely to write "cursory, one-line orders").

[FN253]. See, e.g., id. Judge 7-1 at 84-85 (opposing increased judicial time  
supervising staff attorneys and mandating that all opinions be "polished,     
thoughtfully considered" opinions); id. Judge 9-11 at 88 (supporting the      
current practice of judges reviewing unpublished opinions "minimally, mostly  
for result"); id. Judge 9-21 at 89 (evincing a lack of confidence in opinions 
written by staff attorneys and the hope that they would never be persuasive   
authority).

[FN254]. See, e.g., id. Judge 9-2 at 86-87 (citing problems involved in       
checking earlier rulings in immigration cases more carefully to avoid         
intracircuit splits in repetitive situations).

[FN255]. See Pether, Inequitable Injunctions, supra note 4, at 1440-41        
(introducing the argument that institutionalized unpublication replaced       
legalized racial discrimination as the primary means in United States "common 
law" of excluding others).

[FN256]. Sedgwick, supra note 2, at 7 (commenting on the claim in the majority
opinion in Bowers v. Hardwick that "to claim that a right to engage in sodomy 
is 'deeply rooted in this nation's history and tradition' or 'implicit in the 
concept of ordered liberty' is, at best, facetious").

[FN257]. In re Lindsay, 158 F.3d 1263, 1274 (D.C. Cir. 1998) (citing letter   
from James Madison to W.T. Berry (Aug. 4, 1822), in 9 The Writings of James   
Madison 103 (Gaillard Hunt ed., 1910)).

[FN258]. See Sedgwick, supra note 2, at 10 (arguing that the system of binary 
oppositions constitutive of Western epistemology is not symmetrical but rather
"unsettled and dynamic" and thus "irresolvably unstable").

[FN259]. Id. at 10 (emphasis in the original). We must also remember Robert   
Gordon's insight that "[a] substantial chunk of our legal history is a truly  
horrifying epic of justice denied and persecution of those who struggle for   
it. Legal elites, who in the most complacent liberal and conservative stories 
are the statesmen-like vanguard of progressive politics, ceaselessly adapting 
law to the waking needs of society." Robert W. Gordon, The Politics of Legal  
History and the Search for a Usable Past, 4 Benchmark 269, 277 (1990).