The National Law Journal
Volume 23, Number 26
Copyright 2001 by The
New York Law Publishing Company
The National Law Journal
Monday, February 19, 2001
MUM KILLS PRECEDENTS
David R. Fine
Special to The National
Mr. Fine is a senior associate in the Harrisburg, Pa., office of Kirkpatrick
There, a taxpayer sought a refund and made an argument squarely
rejected in an unpublished 1992 opinion. In an opinion that had almost nothing
to say about tax law but a great deal about judicial power and the history of
precedent in the law, Judge Arnold and his colleagues told Ms. Anastasoff that she-and the panel-were bound by the earlier
YOU ARE researching a critical issue for an appellate brief and you find a case
that is absolutely parallel to yours and from the same court.
"Eureka!" you cry. Then you see the local rule that forbids use of
unpublished opinions as precedent. Your perfect
decision, rendered by three wise federal appellate judges (wise because they
agree with you), might just as well not exist.
Judge Richard S. Arnold of the U.S. Court of Appeals for the 8th Circuit took
on this anomaly directly in his August 2000 decision in Anastasoff v. U.S.,
223 F.3d 898.
The local rule unconstitutionally expanded the scope of the Art. III judicial power. Ms. Anastasoff's
case seemed destined for the Supreme Court, but it met its demise not with a
bang but a whimper. The Internal Revenue Service changed its policy and paid
Ms. Anastasoff her refund. The 8th Circuit vacated
the panel decision as moot. Judge Arnold's constitutional analysis, which will
surely be resurrected in some other case, was right. But unpublished-so-nonprecedential rules invite abuse and inconsistency.
It's human nature
That's less an indictment of the judiciary than a
recognition of human nature. Strict application of the law sometimes brings
about unsettling results. That's why a jury
considering the case of a mother who has killed her child's molester might
absorb the damning evidence and still acquit. Are judges any less tempted? I
have no doubt that most of them swallow hard and apply the law. But what if there
were a mechanism to decide that case in what seems the more just-if not
justifiable-way and to designate it as sui generis so that it does not foul the
The harm would be considerable. The law should be predictable. To the individual
litigant, it matters not at all if the opinion in his case becomes precedent.
(I cannot imagine Mrs. Palsgraf in her later years
sitting her grandchildren on her lap and telling them, proudly, that, even
though she lost, Chief Judge Cardozo used her train station accident to
establish the limits of a tortfeasor's duty.) To
litigants, their case is the most important one pending and they want a predicable result.
In addition, the unpublished-so-nonprecedential
rules invite a sometimes-remarkably-uneven application of the law.
For example, in U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000), the
9th Circuit announced that it was publishing its opinion on a technical
sentencing issue because the circuit had never addressed the issue in a published-and therefore precedential-opinion. Instead, over
three years, different panels of the court had issued 20 unpublished opinions
that took three different approaches to the same issue.
One justification for the rules is that many cases do not involve unique facts
or explore the frontiers of jurisprudence. Accordingly, they do not merit space
in overcrowded law books. Because they would not be widely available, they
should not be considered precedent.
At one time, that was a good argument, but that time is long past. It ignores
the many new means of disseminating judicial opinions. Consider the Internet.
Every federal appeals court now has a Web site that posts (and usually
archives) published opinions. Most lawyers have access to the Internet (or can
gain that access at a nominal cost).
Moreover, the addition of more opinions to Lexis and Westlaw would not likely
increase their costs in any significant way. And, of course, courts can require
that counsel attach copies of unpublished opinions to briefs that cite them.
The point is that nowadays, a decision that an opinion should not be published in a book hardly means that the opinion
will be hidden away in a dusty filing drawer in the clerk's office.
Inaccessibility is no longer a viable excuse for the unpublished-so-nonprecedential rules. With their rationale stripped away,
they remain an invitation to abuse and an impediment to legal uniformity.