Non-publication
Encyclopedia
Non-publication of opinions, or Unpublished opinions, are those decisions of courts that are not available for citation as precedent
because the judges making the opinion deem the case as having less precedential value.
In the system of common law
, each judicial decision becomes part of the body of law used in future decisions. However, some courts reserve certain decisions, leaving them "unpublished", and thus not available for citation in future cases. It has been argued that non-publication helps stem the problem of too much written material creating too little new law. Specifically, the number of federal appeals filed annually grew from 23,200 to 33,360 between 1980 and 1985, and 55,000 federal appeals were filed in 2000.
Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in a reporter
. "Unpublished" federal appellate decisions are published in the Federal Appendix
. From 2000 to 2008, the U.S. Court of Appeals for the 4th Circuit had the highest rate of non-publication (92%), and more than 85% of the decisions in the 3rd Circuit, 5th Circuit, 9th Circuit, and 11th Circuit went unpublished. Depublication is the power of a court to make a previously published order or opinion unpublished. The California Supreme Court may depublish opinions of the California Courts of Appeal.
It has been argued that non-publication encourages expedient, not careful, consideration as the basis for judgment, and constitutes an invitation to error, incompetence, corruption and tyranny.
recommended that federal appellate courts publish only those decisions "which are of general precedential value." Since 1976, every federal appellate court has adopted rules limiting the publication of opinions. Most federal appellate courts publish less than half of their decisions on the merits. As of the year 2004, some 80% of United States Courts of Appeals
decisions are unpublished. In Anastasoff v. United States
, the U.S. Court of Appeals for the 8th Circuit struck down non-publication, but the decision was later declared moot. In Hart v. Massanari, the U.S. Court of Appeals for the 9th Circuit upheld non-publication as constitutional.
On September 20, 2005 the Judicial Conference of the United States voted to approve rule 32.1 of the Federal Rules of Appellate Procedure
, allowing citation of unpublished decisions issued after January 1, 2007. Judge Samuel Anthony Alito, Jr.
(since appointed to the Supreme Court of the United States
) was then the chair of this committee. More than 500 public comments were received from supporters and opponents of the new rule.
in the 1990s and 2000s. There is active debate on the fairness issues raised by non-publication, and the utility of non-publication in the light of computerization of court records. It has been argued that the behavior of judges and litigants indicates that "unpublished" does not mean "unimportant," and that technology has affected the storage costs, research costs and intellectual costs associated with publication of opinions. A "shadow body of law" has developed, leading to concerns about unfair use and access. It has been argued that the "hidden" conflict between published and unpublished decisions is hard to square with fundamental principles of equal justice. Unpublished decisions have also been criticized as an abdication of responsibility, in that it frees judges from the responsibility of preparing publication-worthy opinions in every case. The idea that unpublished opinions would be treated by courts as if they didn't exist because they were relatively inaccessible to many lawyers, were thought to involve only well-established legal principles, and were otherwise unsuitable for the precedential status usually accorded to decisions of the federal appellate courts has been described as a legal fiction
.
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
because the judges making the opinion deem the case as having less precedential value.
In the system of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, each judicial decision becomes part of the body of law used in future decisions. However, some courts reserve certain decisions, leaving them "unpublished", and thus not available for citation in future cases. It has been argued that non-publication helps stem the problem of too much written material creating too little new law. Specifically, the number of federal appeals filed annually grew from 23,200 to 33,360 between 1980 and 1985, and 55,000 federal appeals were filed in 2000.
Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in a reporter
Law Reports
The Law Reports is the name of a series of law reports published by the Incorporated Council of Law Reporting.The Council maintains that they are "'the most authoritative reports' and should always be 'cited in preference where there is a choice'." This series is now divided into four main...
. "Unpublished" federal appellate decisions are published in the Federal Appendix
Federal Appendix
The Federal Appendix is a case law reporter published by West Publishing. It publishes judicial opinions of the United States courts of appeals that have been not been selected for publication. Such "unpublished" cases are ostensibly without value as precedent. However, the Supreme Court made a...
. From 2000 to 2008, the U.S. Court of Appeals for the 4th Circuit had the highest rate of non-publication (92%), and more than 85% of the decisions in the 3rd Circuit, 5th Circuit, 9th Circuit, and 11th Circuit went unpublished. Depublication is the power of a court to make a previously published order or opinion unpublished. The California Supreme Court may depublish opinions of the California Courts of Appeal.
It has been argued that non-publication encourages expedient, not careful, consideration as the basis for judgment, and constitutes an invitation to error, incompetence, corruption and tyranny.
History
In 1964, the Judicial Conference of the United StatesJudicial Conference of the United States
The Judicial Conference of the United States, formerly known as Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial courts in the United States...
recommended that federal appellate courts publish only those decisions "which are of general precedential value." Since 1976, every federal appellate court has adopted rules limiting the publication of opinions. Most federal appellate courts publish less than half of their decisions on the merits. As of the year 2004, some 80% of United States Courts of Appeals
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
decisions are unpublished. In Anastasoff v. United States
Anastasoff v. United States
Anastasoff v. United States, , was a case decided by the U.S. Eighth Circuit on appeal from the U.S. District Court for the Eastern District of Missouri. It is notable for being the only case to consider the Anastasoff issue, that is whether Article Three of the United States Constitution requires...
, the U.S. Court of Appeals for the 8th Circuit struck down non-publication, but the decision was later declared moot. In Hart v. Massanari, the U.S. Court of Appeals for the 9th Circuit upheld non-publication as constitutional.
On September 20, 2005 the Judicial Conference of the United States voted to approve rule 32.1 of the Federal Rules of Appellate Procedure
Federal Rules of Appellate Procedure
The Federal Rules of Appellate Procedure are a set of rules, promulgated by the Supreme Court of the United States on recommendation of an advisory committee, to govern procedures in cases in the United States Courts of Appeals....
, allowing citation of unpublished decisions issued after January 1, 2007. Judge Samuel Anthony Alito, Jr.
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
(since appointed to the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
) was then the chair of this committee. More than 500 public comments were received from supporters and opponents of the new rule.
Controversy
The issue of unpublished decisions has been described as the most controversial to be faced by the Advisory Committee on the Federal Rules of Appellate ProcedureFederal Rules of Appellate Procedure
The Federal Rules of Appellate Procedure are a set of rules, promulgated by the Supreme Court of the United States on recommendation of an advisory committee, to govern procedures in cases in the United States Courts of Appeals....
in the 1990s and 2000s. There is active debate on the fairness issues raised by non-publication, and the utility of non-publication in the light of computerization of court records. It has been argued that the behavior of judges and litigants indicates that "unpublished" does not mean "unimportant," and that technology has affected the storage costs, research costs and intellectual costs associated with publication of opinions. A "shadow body of law" has developed, leading to concerns about unfair use and access. It has been argued that the "hidden" conflict between published and unpublished decisions is hard to square with fundamental principles of equal justice. Unpublished decisions have also been criticized as an abdication of responsibility, in that it frees judges from the responsibility of preparing publication-worthy opinions in every case. The idea that unpublished opinions would be treated by courts as if they didn't exist because they were relatively inaccessible to many lawyers, were thought to involve only well-established legal principles, and were otherwise unsuitable for the precedential status usually accorded to decisions of the federal appellate courts has been described as a legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
.
External links
- NonPublication.com - Issue group seeking rule changes, Committee for the Rule of Law
- A Librarian’s Guide to Unpublished Judicial Opinions