Thursday, November 13, 2008

Unpublished Opinions

Every year in 1L Legal Research we discuss unpublished opinions very quickly and it seems that every year I have an upperclassmen who kind of knows about it but isn't very clear on them. HERE is an excellent blog post from the Law Librarian Blog discussing unpublished opinions in much more detail than we go into in Legal Research and what the book, at least the version we are currently using, goes into. Below are a couple of excerpts:

Q: What specifically are we talking about when we say “unpublished opinions”?
A: “Unpublished opinions” refers to court opinions that the court withholds from formal publication in the official reporter.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of opinions, from about the thirteenth century to the start of the twentieth century, many court opinions went unpublished.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 So an attempt was made to limit those expenses by creating a class of opinions that would be designated “unpublished.” The federal circuit courts for example enacted rules limiting the citation of these unpublished opinions and (in most circuits) limiting their precedential value.

Q: What about the idea that some cases make law and should be published, and other cases, which only apply law, need not be published?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

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