June 20, 2004

Unpublished law

By: James N. Markels

When is a published document considered unpublished? Only in the realm of law, where one of the first lessons any law student learns is how legal fiction is more powerful than reality. If a court decides that you have received “constructive notice” of something, then you will be treated as if you have received actual notice, even though you haven’t. In the same vein, a pitched battle is being waged in the legal community over the legal status of so-called “unpublished opinions”–opinions handed down by courts that are in all respects akin to regular published opinions except for one difference: they aren’t officially published and shouldn’t be cited as precedent.

Well, except they are officially published, both in the new Federal Appendix and on the ever-handy searchable databases of Westlaw and Lexis. And it may come as a surprise to some to learn that there are far, far more unpublished opinions than published ones–something on the scale of 9 to 1. In other words, the vast majority of adjudicating that our federal appellate courts do only affects the parties in the case at hand and must be ignored by future parties in similar situations.

This may change. The Federal Rules of Appellate Procedure are currently considering whether to add Rule 32.1, wherein “[n]o prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.” In other words, unpublished opinions could be cited just like published ones, across all jurisdictions.

Appellate practitioners generally favor this rule because right now the different federal circuits all have different rules on citing to unpublished opinions. The Ninth Circuit takes a hard line against the use of unpublished opinions, even to the point of disciplining lawyers that dare use them in their briefs. Other circuits are more relaxed, and some circuits have even handed down decisions that cite to unpublished opinions for authority. A uniform rule eases the practitioner’s burden.

On the other hand, judges have come out en masse in opposition to Rule 32.1, most notably Judge Alex Kozinski of the Ninth Circuit. In his opinion in Hart v. Massanari, Judge Kozinski laid out the history of citation from the days of pure common law to today’s extensive publication of opinions and argued that unpublished opinions were a critical tool in the judicial purview to allow judges to decide cases without making every decision a binding future precedent. In other words, “certain types of cases do not deserve to be authorities,” since their disposition could turn on things not entirely related to the merits of the case, such as poor lawyering or an incomplete record.

In a twenty-two-page letter in opposition to Rule 32.1, Judge Kozinski made several additional arguments against unpublished opinions. For one, since Courts of Appeal handle so many cases (each judge having to write about 150 opinions per year), the workload requires that most of these opinions receive relatively little attention–or at least not enough to be so comprehensive in research and thought to be a precedent that binds the rest of the court. Second, precedent is a tough thing to overcome. The decision of any three-judge appeals panel is binding on the entire circuit until reversed en banc, which is a very difficult process. Making every decision precedent would make the law too rigidly inflexible. Third, since the vast majority of all decisions are unpublished, giving those decisions precedential value would flood practitioners with new cases to sift through, most of them adding nothing to the law, and harming those without the time and resources to commit to that task.

However, the proposed Rule 32.1 does not indicate that unpublished opinions should be given equal precedential weight to published opinions–it only allows their citation. A judge would still be free to ignore the holdings of unpublished opinions, precisely for the reasons that Judge Kozinski mentions. So long as judges are earmarking which decisions are binding and which aren’t, they should be able to weight them accordingly, in the same way that more evidence is allowed in a bench trial than a jury trial because a judge knows better what weight to grant to the evidence.

Simply the fact that some decisions are slated for the Federal Appendix instead of the Federal Reporter will tip practitioners and judges that those opinions are to be taken with a grain or two of salt, so there should be no need for overworked judges to fear that a slapdash opinion would suddenly become the rule for a whole body of law. But at least these opinions could offer some amount of guidance as to what is a proper result for similar circumstances, even if those circumstances are not optimal.

The crux of the matter is that our law holds dear the principle that the same facts should lead to the same result. That is the essence of “equal protection of the laws.” While Judge Kozinski likens unpublished opinions to having the “people making the sausage tell[ing] you it’s not safe for human consumption,” the trouble is that the parties involved in that unpublished case are stuck with the result, and future parties in a similar position should expect the same. Otherwise, unpublished opinions appear arbitrary, an anomaly of law that keeps the process uncertain. For that reason alone, if the law industry is finally big enough to publish every opinion, let them be fair game.

James N. Markels is an attorney and a regular columnist for