Tax Analysts Blog

Why Do We Still Have Unpublished Opinions?

Posted on Oct 30, 2015

Newsflash…it’s 2015, and it might be time to reexamine the idea of unpublished opinions. For many years, having an opinion go unpublished meant that it was literally hidden from lawyers because it was not published in an official reporter. Now unpublished opinions readily appear in online databases. As a result, unpublished opinions are not unpublished in the sense that no one has access to them, but are simply not published in an official reporter and hold less or no precedential value with courts.

But federal and state courts both widely use unpublished opinions. In fact, nearly three-quarters of all opinions are handled in this way. While this practice may have been justified 100 years ago, is it still justified today?

While the use of unpublished opinions dates back to the 1880s, it was in the mid-1960s that the Judicial Conference of the United States took notice. At the time, it determined that federal reporters were growing too rapidly, and it recommended that federal appellate courts publish only opinions that were “of general precedential value.” The conference later specified that each federal circuit could implement rules that prohibited the publication of decisions unless it was ordered to publish them by a majority of the panel rendering the decision, and it discouraged the citation of unpublished opinions.

Those rules still hold true today. The most common rationale given for the use of unpublished opinions is to alleviate the ever-increasing caseload being placed on courts, in particular courts of appeals. Using unpublished opinions, courts can dispose of run-of-the-mill cases more quickly and efficiently because an unpublished opinion tends to take less time to compose than a published opinion. A published opinion must include a full description of all relevant facts and procedural history as well as a holding that has sufficient detail for a general audience to comprehend. An unpublished opinion can include a truncated version of the facts and a statement of the holding, often without the legal analysis that led to it.

Other justifications for unpublished opinions include that most court of appeals cases involve questions on which the law is already clearly defined. The court does not need to make additional law based on those cases. If it did, proponents of unpublished opinions would argue that there would be too much law and that it could become difficult for practitioners to research all relevant precedent.

But isn’t it time to reconsider this thinking? There is no such thing as an unpublished opinion anymore. There are non-precedential opinions, but not unpublished opinions. And if unpublished opinions are widely available, practitioners are not being saved from having to research them. Even if an opinion isn’t precedential, if the fact pattern is similar to their case, practitioners want to know what and how the court ruled -- not to mention that legal research is more sophisticated than it was even 20 years ago.

Also, practitioners should not be prohibited from citing any opinion of the courts. Eighth Circuit Judge Richard S. Arnold once said that “judges must respect what they have done in the past, whether or not it is printed in a book" -- a novel concept. Courts should not be able to ignore opinions they issue by designating them as unpublished, especially since in 2015 they’re published anyway.

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