Supreme Court to end unpublished opinions by Circuits
According to Law.com, the Supreme Court has voted to end the practice of unpublished opinions. For those not initiated in legal arcanery, an unpublished decision is one the court says shouldn't be printed in the traditional hardcopy West reports, and should not be cited as precedent. In practice, many such decisions are picked up by legal computer databases. The Supreme Court itself doesn't have unpublished cases.
There's been a big debate over this practice. On the pro side, (1) it lets the Circuits screen out a lot of caselaw that is mundane, of no value ("my sentence was longer than is fair") or on very narrow grounds; (2) the Circuits, if presented with a poorly-briefed case, can acknowledge that they might be on thin ice rather than binding themselves; and (3) since they don't have to worry about crafting these carefully, just reaching a correct result on the facts presented, it saves a lot of time. On the con side, (1) it means courts can reach inconsistent results and thus flies in the face of the core of stare decisis (all cases on identical facts will have identical results); (2) maybe cases involving things like citizens getting locked up ought to have a bit of thought put into them; and (3) it tends to encourage an approach along the lines of "de-publish unless it's really important".
I think it is a good idea to allow citation of unpublished opinions. Currently, about 80% of federal case are unpublished. It makes the courts more accountable for their previous decisions. J. Kozinski of the 9th Cir., one of my favorite judges, is against this move because of the poor quality of the unpublished opinions - they are written by law clerks and staff attorneys.
Posted by: Christopher A. George at April 14, 2006 05:55 AM