Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

39 MERLR 477

Mercer Law Review

Winter, 1988

George M. Weaver [FNa]

Copyright 1986 by George M. Weaver

I. INTRODUCTION

The purposes of this Article are to examine the role of unpublished judicial decisions in the law and to determine what part of the law is formed by such opinions. This Article will not address the desirability of limited publication. [FN1] It will be shown that unpublished opinions have the same dispute-settling capacity as published opinions. Unpublished opinions should not, however, be regarded as precedent. Nevertheless, they should be citable for other purposes.

The work load of American courts has increased dramatically in recent years. The statistics are familiar. During the year ending June 30, 1980, plaintiffs filed 188,487 cases in the United States district courts. By the year ending June 30, 1985, the number of cases filed had grown to 299,164. In the United States courts of appeals, the number of appeals during the same period increased from 23,200 to 33,360. [FN2] The increase in *478 cases has led quite naturally to a greater number of published judicial opinions.

Complaints about the growth in law reports have accelerated. In England, as early as 1671, expressions of dismay were heard concerning the growth of reports. At that time reporters who transcribed the customary oral court opinions produced the reports. [FN3] In Nineteenth Century America, although the volumes of reports were very few by modern standards, complaints increased. An article published in 1824 said: '[T]he multiplication of reports emanating from the numerous collateral sources of jurisdiction, is becoming an evil alarming and impossible to be born [sic].' [FN4] The cause for concern is, of course, even greater today. As one jurist has noted:

[T]here are limits on the capacity of judges and lawyers to produce, research, and assimilate the sheer mass of judicial opinions. Those limits are dangerously near at present and in some systems may already be exceeded . . .. Common law in the United States could be crushed by its own weight if present trends continue unabated. [FN5]

One response of American courts to the unmanageable growth of law reports has been to limit the publication of their decisions. The movement toward limited publication is usually traced back to a 1971 report by the Federal Judicial Center. [FN6] Numerous state appellate courts have limited the publication of their decisions, [FN7] and all of the federal circuit courts of appeals have issued rules or plans which allow either nonpublication of some of their written opinions or disposition without opinion. [FN8] *479 The federal district court decisions, or opinions, which are unofficially published in the Federal Supplement and the Federal Rules Decisions, have never been published in a plenary fashion. Rather, they are published sporadically according to the wishes of the deciding judge. [FN9]

Limited publication has been justified on the ground not only that it reduces the growth of the law but also that it eases burdens on courts. It is reasoned that because judges need not be as concerned with the appearance of unpublished opinions, they will spend less time on them. [FN10]

As used in this Article, 'unpublished opinion' refers to an opinion not designated for publication by the court that decided it. Such an opinion cannot then be published in an official reporter and is ordinarily not published in an unofficial reporter. Public access to these decisions is, however, not totally eliminated. The litigants receive copies and other interested persons may purchase copies. [FN11] Additionally, an increasing number of specialized services unofficially publishes opinions that the respective courts have not designated for publication. [FN12] As long as a market exists for unpublished opinions, private publication will no doubt continue. [FN13] Availability through unofficial publication is, however, at best sporadic.

Some courts prepare and circulate indices of unpublished opinions. The Tenth Circuit, for example, formerly distributed a subject-matter index *480 to its unpublished opinions. [FN14] Other courts disseminate nonsubject-matter indices of unpublished opinions which show only the docket number, date of decision, and disposition. Some federal courts of appeals distribute their unpublished opinions to all circuit and district judges in the circuit. [FN15] Nevertheless, it is safe to assume that an opinion not designated for publication is generally unavailable to the public, bar, and other courts.

At present, there is considerable controversy over whether unpublished opinions may serve as precedents. The conflict between the various United States courts of appeals is illustrative. [FN16] The rules of several of the appeals courts expressly provide that unpublished opinions are not precedents, [FN17] while the rules of others imply that such opinions are not precedents. [FN18] Still other appeals courts have adopted rules either expressly stating that unpublished opinions are precedents [FN19] or implying that they are precedents. [FN20] Moreover, the appeals courts differ on whether citation of unpublished opinions should be allowed in unrelated cases. A number of the courts forbid citation in such cases, [FN21] others disfavor or severely restrict it, [FN22] and one allows free citation. [FN23]

A further example of the conflict in this arena can be seen in Keener v. Ridenour, [FN24] in which a federal district court had dismissed a petition for a writ of habeas corpus for failure to exhaust available state remedies. In examining the availability of additional state remedies, the Court of Appeals for the Sixth Circuit cited and relied upon several unpublished decisions *481 of the Ohio courts of appeals. [FN25] The court based this course on the view expressed by Ohio courts that unpublished Ohio appellate opinions may be cited under certain circumstances. [FN26] The court, however, refused to consider its own unpublished opinions because its rule forbade any citation of those opinions. [FN27]

Before addressing the precedential value of unpublished opinions, a word should be said about the purposes of judicial decisions. Judicial decisions serve two basic purposes: (1) to settle the particular dispute before the court, and (2) to establish the law that is used to decide other cases. [FN28] Regarding the second purpose, Justice Cardozo wrote: 'Every judgment has a generative power. It begets in its own image. Every precedent, . . . has a 'directive force for future cases of the same or similar nature.'' [FN29] Law-making in this broader sense is especially important in appellate courts of last resort. Generally, the higher a court's position is, the less concerned it is with correcting mistakes in particular cases, and the more occupied it is with errors that affect the public interest and large numbers of cases. The United States Supreme Court is especially concerned that its decisions have broad impact. In Jacobellis v. Ohio, [FN30] in which the Supreme Court decided the obscenity vel non of a single film called Les Amants, Chief Justice Warren lamented that the Court had failed to furnish sufficient guidance in its obscenity decisions:

This Court hears cases such as the instant one not merely to rule upon the alleged obscenity of a specific film or book but to establish principles for the guidance of lower courts and legislatures. Yet most of our [obscenity] decisions since Roth have been given without opinion and have thus failed to furnish such guidance. [FN31]

The remainder of this Article will explore the extent to which unpublished opinions serve the two purposes set forth above. First, the Article will address the role of these decisions in settling particular disputes before a court. Second, the Article will address the role that unpublished opinions play in establishing the law to be used in other cases.

*482 II. DISPUTE SETTLING

The power of courts to settle disputes depends to a great extent on three doctrines: res judicata, law of the case, and collateral estoppel. Under the doctrine of res judicata, a valid, final decision and judgment, when rendered on the merits, is an absolute bar to a subsequent suit between the same parties, or those in privity with them, on the same cause of action. [FN32] The law of the case doctrine is similar: it prohibits the relitigation in a single case of an issue already decided in that case. [FN33] Collateral estoppel is based on the same considerations but has wider application. It provides that certain issues which are finally determined may not be relitigated even in a subsequent suit over a different cause of action when the subsequent suit involves a party to the first case or his privy. [FN34]

Clearly, these three doctrines must apply to unpublished opinions for them to have any legal significance. Probably every court that has a rule on citing unpublished opinions allows citation at least for res judicata and law of the case purposes, if not also for collateral estoppel purposes. [FN35] For example, the rules of the District of Columbia Circuit provide:

Unpublished orders, including explanatory memoranda of this Court, are not to be cited in briefs or memoranda of counsel as precedents. However, counsel may refer to such orders and memoranda for such purposes as application of the doctrines of res judicata, collateral estoppel and law of the case, which turn on the binding effect of the judgment, and not on its quality as precedent. [FN36]

Litigation over the constitutionality of a Chicago 'disorderly house' ordinance, Foster v. Zeeko, [FN37] is an example of the use of an unpublished *483 opinion to collaterally estop the relitigation of an issue. In Foster, the United States District Court for the Northern District of Illinois, Eastern Division, held the ordinance to be unconstitutionally overbroad and vague in an unpublished final order. [FN38] Five years later in a new suit by different plaintiffs, [FN39] another judge in the same district court held that under the doctrine of collateral estoppel the earlier unpublished decision required that the ordinance be declared unconstitutional. [FN40]

One cannot rationally quarrel with these uses of unpublished opinions. Otherwise courts would be unable to settle disputes effectively without publication of their opinions. Moreover, the limited availability of unpublished opinions does not militate against their employment as res judicata, law of the case, or collateral estoppel because people involved in such disputes and against whom these doctrines operate are almost always aware of the unpublished decisions. [FN41] Therefore, for dispute-settling purposes, unpublished opinions are fully law. They may be used for res judicata, law of the case, and collateral estoppel purposes in the same manner as published opinions.

III. ESTABLISHMENT OF LAW FOR USE IN OTHER CASES

We are now faced with the question of what part unpublished opinions play in establishing the law as it applies to all cases--not just those involving the same parties or issues. Being a precedent or the subject of stare decisis is the most influential position that a judicial decision may occupy. Accordingly, we will first seek to determine if the doctrine of stare decisis applies to unpublished judicial opinions. Then we will consider whether unpublished opinions serve any other purpose in establishing the law.

A. Stare Decisis

Judicial decisions to which the important doctrine of state decisis applies form binding precedent. The meaning of the maxim stare decisis et non quieta movere expresses the sense of the legal doctrine: let stand *484 what has been decided, and do not disturb what is settled. [FN42] The concept applies most clearly to the relationship of an inferior court to a superior one. The lower court is, according to the doctrine, bound by the higher court's decisions even though it may disagree with the higher court. [FN43] Thus, the superior court's decisions serve as precedent for the lower court. Moreover, prior decisions of a particular court are precedent for that same court when faced with the same, or a similar, issue. The obligation of a court to follow its own decisions, however, is not as strong as its duty to follow those of a superior court. [FN44] Traditionally, English courts have exhibited more deference toward their prior decisions than American courts have toward theirs. [FN45]

Before the term 'precedent' can be used meaningfully, a particular court must be specified. Once a court is specified, the body of precedent *485 for that court consists of its previous decisions and those of courts superior to it. Although in a loose sense decisions of inferior, coordinate, and foreign courts are sometimes called precedent, [FN46] the term is more properly used as suggested above. [FN47]

The policy considerations stare decisis serves should be mentioned. Predictability and stability in the law are two of the important policies behind the doctrine. As Justice Douglas, who was no ardent supporter of the doctrine, once said: 'Stare decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare decisis serves to take the capricious element out of law and to give stability to a society.' [FN48] Justice Frankfurter stated: 'We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic [sic] need to satisfy reasonable expectations.' [FN49] The Supreme Court has given the following rationale for observing stare decisis: '[T]he desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise . . ..' [FN50] The concern for protecting reasonable expectations is central to the doctrine of stare decisis. In short, courts adhere to the doctrine so that people can know what the law is. For these policy reasons, courts recognize an obligation to follow precedent even though they might decide the issue differently if it were a matter of first impression. [FN51]

To treat unpublished opinions as precedent would probably not promote the predictability and stability of the law. Rather, unpredictability and instability would seem to follow. If the average person, even through his attorney, does not have access to a decision, he certainly cannot take it into account in ordering his affairs. The use as precedent of an unpublished *486 opinion, to which even the average man with counsel does not have access, would make the law capricious and unpredictable. Thus, the policies behind the doctrine of stare decisis would support the conclusion that unpublished judicial opinions are not appropriate subjects of stare decisis. Before embracing this conclusion, however, we should look at the nature of law and related matters.

Open access to judicial decisions would seem to be necessary for them to be considered law in a general sense, that is, doing more than settling the particular disputes before the respective courts. In a highly literate and modern technological society as the United States with a tradition of printing judicial decisions, open access to court decisions requires that they be printed and distributed in reports. In the future, perhaps, publicly accessible computer storage will be the accepted means of promulgation. In earlier days, before the prevalence of literacy and printing, law was promulgated primarily orally. [FN52]

Noted legal theorists have agreed that promulgation is necessary to law. Practices such as the Roman Emperor Caligula's posting of his severe tax statutes in minute letters in high places 'so that [they] should be read by as few as possible' [FN53] have generally been condemned. St. Thomas Aquinas, who believed that promulgation was essential, wrote:

[L]aw is laid on subjects to serve as a rule and measure. This means that it has to be brought to bear on them. Hence to have binding force, which is an essential property of a law, it has to be applied to the people it is meant to direct. This application comes about when their attention is drawn to it by the fact of promulgation. Hence this is required in order for a measure to possess the force of law.

To sum up, from the . . . foregoing discussions the following definition can be gathered. Law is nought else than an ordinance of reason for the common good made by the authority who has case of the community and promulgated.

Hence: 1. Natural law is promulgated by God's so instilling it into men's minds that they can know it because of what they really are.

2. Those who are not present when a law is promulgated are obliged to its observance in that, given the fact of promulgation, the law is or can be brought to their attention by others.

3. Promulgation in the present stretches into the future through being *487 perpetuated in a written code, which, as it were, ensure a lasting promulgation. Accordingly, Isidore etymologizes, law (lex) gets its name from reading (legendo), because it is written down. [FN54]

Hegel insisted in his Philosophy of Right that law must be made universally known: 'If laws are to have a binding force, it follows that, in view of the right self-consciousness . . . they must be made universally known.' [FN55] According to Thomas Hobbes, a law must 'declar[e] publicly and plainly.' [FN56] Hobbes also said that statute books should be circulated as widely as the Bible so that all who could read could have a copy. [FN57] And, according to Jeremy Bentham, persons should not be punished for the violation of a law 'not sufficiently promulgated.' [FN58]

Many legal doctrines illustrate the importance of the law being knowable or accessible. Several examples are: The void for vagueness doctrine, limitations on retroactive legislation, restrictions on retroactive overruling of judicial decisions, and requirements regarding prison law libraries. These doctrines support the conclusion that promulgation is necessary to the law.

Concerning the void for vagueness doctrine, the Supreme Court has frequently held that the due process clauses of the fifth and fourteenth amendments to the United States Constitution forbid any governmental statutes, laws, rules, or policies from being so vague and uncertain that persons of ordinary intelligence cannot determine what conduct is required or prohibited. [FN59] In a leading case, the Court said:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. [FN60]

*488 In other words, the due process clauses prohibit a vague law because it is like a secret law to which no one has access. In another case in this area, the Supreme Court summarized the rationale behind the void for vagueness doctrine as follows: 'All are entitled to be informed as to what the State commands or forbids.' [FN61]

The constitutional prohibitions on retroactive legislation also show the importance that the law be 'knowable.' Two clauses of the United States Constitution prohibit the making of ex post facto laws. [FN62] These were held early to prohibit the passage of only criminal or penal measures which have a retroactive effect. [FN63] The purpose of the ex post facto prohibition is 'to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.' [FN64] Limitations on other types of retroactive legislation are located in the contract clause, [FN65] the bill of attainder clauses, [FN66] and the due process clauses of the fifth and fourteenth amendments. [FN67] These restrictions are based upon the conviction that persons should not be made subject to laws that they could not have known about.

A related doctrine also reflecting the concern that the law be knowable or discoverable is found in decisions of American courts concerning the retroactive application of overruling decisions. One of the factors generally considered by courts faced with this issue is whether there was prior justifiable reliance on the overruled decision or practice. A finding of reliance counts against retroactive application. [FN68] The basis for this approach is the view that persons should be able to rely on law which is knowable or discoverable and should not be regulated by unknowable future changes in the law.

Requirements concerning prison law libraries also illustrate the importance that our society attaches to the knowability of the law. In Bounds v. Smith, [FN69] the Supreme Court addressed the issue of 'whether States must protect the right of prisoners to access to the courts by providing them *489 with law libraries or alternative sources of legal knowledge.' [FN70] The Court held that 'the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.' [FN71] In reaching this holding, the Court said: 'A source of current legal information would be particularly important so that prisoners could learn whether they have claims at all, as where new court decisions might apply retroactively to invalidate convictions.' [FN72]

The above principles show that before law can legitimately regulate, it must be knowable. In other words those to whom a law, whether a statute or court decision, applies should have access to it. In our society, law is made knowable by publication. The parties to a lawsuit learn the results of their case by direct notification--they ordinarily do not need to rely on publication. But, in order for the public to have access to a judicial decision, it must be published. One court has said: '[U]nder our system of jurisprudence the judiciary has the duty of publishing and disseminating its decisions.' [FN73] This reinforces the conclusion that unpublished opinions should not be accorded precedential status.

Some legal scholars have argued that unpublished opinions should be considered precedent despite their limited dissemination. [FN74] But this ignores the importance of the law being knowable and readily available. Moreover, if wider dissemination and retrieval measures are undertaken to make unpublished opinions more accessible, their status as 'unpublished' opinions will accordingly be compromised.

As mentioned earlier, a number of courts follow the view that unpublished opinions are not precedent. For example, a Ninth Circuit rule provides: 'A disposition that is not for publication shall not be regarded as precedent . . ..' [FN75] This type of rule represents the better view.

Those courts that regard unpublished opinions as precedents are not following the best rule. A Fifth Circuit rule provides that '[u]npublished *490 opinions are precedent.' [FN76] Based on the preceding discussion, this rule is not wise. The same is true of those rules which imply that unpublished decisions can be considered precedent. [FN77]

The next issue is whether unpublished decisions should be citable to courts. In view of the conclusion mentioned above, the citation of unpublished opinions as precedent should not be allowed. Their citability for other purposes is, however, a different question.

B. Persuasive Authority

It does not follow from the nonprecedential status of unpublished opinions that they should not be citable for any purpose. Courts and litigants cite a great variety of legal and nonlegal materials that are not precedent. Among the legal materials that are frequently cited are: certiorari denials (especially of the United States Supreme Court), dicta, vacated decisions, reversed decisions, overruled decisions, plurality opinions, equally divided affirmances, concurring opinions, dissenting opinions, decisions of inferior and coordinate courts, legislative history, decisions of foreign courts, agency rulings, attorneys' general opinions, law review articles, treatises, legal encyclopedias, and the restatements of law. Yet, none of these materials are precedent. Moreover, economic, sociological, scientific, and other nonlegal data are cited with great frequency both by and to courts. [FN78]

Not all of the nonprecedential material cited to courts is published. For example, in Witherspoon v. Illinois, [FN79] unpublished manuscripts were cited to and by the Court on the guilt proneness of 'death-qualified' jurors, although the Court found them to be 'too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.' [FN80] If unpublished materials that *491 are not precedent may be cited, why not unpublished judicial decisions? [FN81]

It is an obvious truth of logic that the validity or soundness of an argument does not depend on the extent to which it is promulgated. For example, Copernicus' arguments against the geocentric theory of the solar system were obviously sound before they were published. Although precedential value requires promulgation, logical validity does not. In law, it is well recognized that nonprecedential judicial opinions may have persuasive value. [FN82]

Thus, if an unpublished opinion contains an argument which a litigant or court finds persuasive, the unpublished opinion should be citable for the purpose of setting out the argument. Unpublished opinions should not be citable as precedent.

If only the argument in an unpublished opinion is valued, then one might respond that the argument should simply be repeated without citing the source. This, however, carries the potential of being unfair. It creates the possibility that a litigant may secretly suggest to a court that it should follow an unpublished decision of which the litigant and the court are aware, but of which opposing counsel is unaware. [FN83] In other words, the litigant employing the unpublished opinion could quote from the opinion without citing the source and the quotation might be recognized and followed by the court. His opponent, it seems, should be informed about the source of the argument.

One further point should be mentioned in favor of the citation of unpublished opinions. It can be argued that the parties and the public have a right to be informed when a court relies on an unpublished opinion in reaching a decision. It has been held in decisions under the Freedom of Information Act that when a federal agency issues a final opinion or order that incorporates or adopts an intra-agency memorandum ordinarily exempt from disclosure, the memorandum itself becomes subject to disclosure along with the final opinion or order. [FN84] When previously exempt documents *492 are incorporated or adopted, 'they are the law itself, and as such should be made available to the public.' [FN85] In these circumstances, the Supreme Court has said that 'the public interest in knowing the reasons for a policy actually adopted by an agency supports [disclosure].' [FN86] Thus, if a court relies upon, incorporates, or adopts an unpublished opinion, the court should cite the opinion. This is not to say, however, that a judge should be required to cite everything which passes through his mind or the minds of his staff members.

The best rule, therefore, appears to be the free citation of unpublished opinions as persuasive authority. Those rules that prohibit only the citation of unpublished opinions as precedent are the most desirable. The Federal Circuit Court of Appeals' rule is an example of this type. It provides in part: 'Opinions designated as unpublished shall not be employed as precedent by this court, nor may they be cited by counsel as precedent, except in support of a claim of res judicata, collateral estoppel, or law of the case.' [FN87] Although several circuits expressly allow citation for any purpose, some disfavor the citation of unpublished decisions. [FN88] The circuit rules that prohibit citation for any purposes other than res judicata, law of the case, and collateral estoppel [FN89] are unduly restrictive.

There is, however, a danger in permitting the free citation of unpublished opinions. On occasion courts have cited unpublished decisions as if they were precedent. [FN90] The deference given by a court to the unpublished *493 decisions of superior courts is certainly understandable. No less a jurist than Learned Hand once said: 'I conceive that the measure of [a lower court's] duty is to divine, as best it can, what would be the event of an appeal in the case before it.' [FN91] If this be true then a federal district court, for example, ought to treat unpublished decisions of its circuit court as precedent. The following sentiments of a district judge are, then, appropriate:

Although the Court is mindful of the Fourth Circuit's admonition that [unpublished] memorandum decisions are not to be accorded precedential value, . . . the legal trend evinced by these four memorandum decisions, with all seven active judges participating in one or more of them, leads the Court to the conclusion that it is now the law in this circuit that an individual convicted of a crime has a constitutional entitlement to pre-conviction confinement sentence credit, whether indigent or not. [FN92]

But a court should obviously not treat nonprecedential material as binding. To do so is an abdication of responsibility. Forbidding the citation of unpublished opinions, however, would not solve this problem. Judges of lower courts could still obtain unpublished opinions and treat them as precedents. [FN93] Like other aspects of our judicial system, the proper use of unpublished decisions depends on the wisdom and integrity of judges.

IV. CONCLUSION

This Article has attempted to discern in what sense unpublished judicial decisions are law. Unpublished decisions are law as much as are published decisions for dispute settling purposes. The application of the doctrines of res judicata, law of the case, and collateral estoppel to unpublished opinions assures their capacity to settle disputes. But unpublished opinions, because of their lack of promulgation, are not precedents. They are not fit subjects for the application of the doctrine of stare decisis. Yet, because the reasoning found in unpublished decisions may be useful in establishing the law, their citation should be allowed for that purpose.