NOTICE: This is an unpublished blog post. It may not be cited by any court or any party to any litigation.
A common practice for many courts is to issue unpublished opinions that may not be cited as precedent. These opinions are often short and consist of a few paragraphs. They are generally supposed to be limited to cases that can be resolved by clearly-established legal rules. According to one news article: “California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions.” These statistics are staggering. Are there really so many cases that do not warrant having precedential value?
Unpublished opinions that may not be used for precedent raise some serious questions. Our legal system relies upon precedent, and we bristle when judges depart from precedent. Yet should we allow judges to say that some opinions are not precedent-worthy? Now that these cases are all readily available electronically, the argument that it is impossible to publish all opinions does not seem persuasive. Another argument is that it would overburden the courts if they couldn’t write unpublished opinions, which are typically very short and hastily-written. If these opinions counted, the argument goes, then judges might feel compelled to spend more time researching and writing them. But wouldn’t this be a good thing? Maybe it would yield better opinions. So by issuing an unpublished opinion, the court is basically saying: “Here’s our decision. We don’t think it’s good enough to be considered as precedent, yet your case isn’t worthy of our spending a lot of time to write such an opinion.”
But what about judicial workload? That surely is a problem, but it still strikes me as fundamentally wrong for a court to issue a decision that it believes is not adequately researched or articulated. Perhaps courts don’t believe this, but if an opinion is adequately researched and articulated, why not publish it and give it precedential value? And if the problem is excessive workload, then shouldn’t there be another way to address it?
Fortunately, in federal courts the rules are changing. In 2006, the U.S. Supreme Court voted to allow the citation of unpublished opinions.
But the practice still remains alive and well in state courts.
When I was clerking in federal circuit court before the rule change, I was surprised at the number of unpublished opinions (called “memorandum dispositions” or “mem dispos” for short). In one case, I found a memorandum disposition that addressed and resolved an open question in the circuit — yet because it was just a memorandum disposition, I couldn’t cite to it or rely upon it. So the issue had been confronted in the circuit and resolved by a panel, but that panel struck me as being lazy and didn’t want to bother to write a real opinion and resolve the issue in the circuit.
In another case, the government in its brief pleaded with the court not to write a memorandum disposition on a particular issue, as several other panels had done in the past. These previous memorandum dispositions came out in diametrically opposed ways, and the government wanted the issue resolved in the circuit.
I think that unpublished non-precedential opinions should be abolished. If a case involves any issue that is unresolved in any given court, the panel should address it with a fully-researched and reasoned opinion. This will make less work for future panels and less work for future litigants. It will also help make the law more clear and definitive. If a case involves a no-brainer issue that has clearly been resolved by the court in earlier cases, then just issue a short opinion saying as much. There’s no reason why that opinion shouldn’t be published or have precedential value.
So is there something I’m missing? Is there a compelling argument in favor of unpublished opinions?
Hat tip: Howard Bashman
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.
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