Congress Examines Unpublished Opinions

It may surprise you to learn that most opinions deciding cases on appeal in the U.S. are unpublished, and in general only published decisions have legal weight as citeable precedent in future cases. This practice allows appellate courts to publish (and thus make law) when this would aid the law's development, while resolving more routine cases in unpublished opinons that help prevent an exponential increase in the number of published opinions, and encourage consistency.

Apparently this was news to Congress, and specifically the House Subcommittee on Courts, the Internet and Intellectual Property, which lists "Nonpublication of federal opinions" as an "Oversight Plan" item for the 107th Congress:

During an oversight hearing in the 106th Congress regarding the size and operations of the 9th Circuit, the Subcommittee learned that some opinions in that Circuit are not published. The Circuit’s defense is that it is attempting to implement creative administrative practices that will generate resource savings, and involves only "easy-to-decide" cases for which there is clear and ample precedential authority. Still, the notion of not providing an explanation as to why an affected litigant actually lost a Federal case may not square with fundamental notions of due process. This issue needs to be considered in all judicial circuits.

(The referenced oversight hearing in the 106th Congress involved the findings of the White Commission, recently mentioned by Howard Bashman; for more White Commission links and the Ninth Circuit's official position go here; to read what Crosby appellate group chair Peter Davis had to say to the White Commission go here.) I think the due process concerns cited in the Oversight Plan are overstated, given that litigants in cases resolved with an unpublished opinion also learn why the court ruled as it did; the opinion simply does not become part of the body of citeable case law. (If Congress wants litigants to have access to judicial reasoning, it should be more concerned about per curiam decisions that simply dictate an outcome without further elaboration.)

Not everyone thinks appellate courts should have the option of handing down unpublished opinions, and a recent National Law Journal/Law.com article discusses the debate in California over this issue. (See also Nonpublication.com) On June 27, 2002, the House Subcommittee on Courts, the Internet and Intellectual Property held a hearing about unpublished decisions, and the statements of the various witnesses may be accessed here.* According to witness Judge Samuel A. Alito, Jr., and the U.S. Courts press release, the Department of Justice has proposed an amendment to the Federal Rules of Appellate Procedure to provide uniform procedures for citing unpublished decisions. That proposal is scheduled for consideration by the Judicial Conference of the United States in November, 2002. Judge Alito described the proposed amendment to the Subcommittee as follows:

It is deliberately narrow and permits citation to an "unpublished" opinion only if: (1) it directly affects a related case, e.g., by supporting a claim of res judicata or collateral estoppel, or (2) "a party believes that it persuasively addresses a material issue in the appeal, and that no published opinion of the forum court adequately addresses the issue." The proposal also requires that a copy of the "unpublished" opinion be attached to any document in which it is cited. The proposal takes no position on the precedential value of an "unpublished" opinion and does not dictate whether or to what extent a court should designate opinions as "unpublished."

*As Judge Kozinski pointed out to the Subcommittee, use of the term "unpublished" today is anachronistic, and dates back to a time when the only way to access a judicial opinion was through a bound book. Now, both published and unpublished opinions are more widely available, and the terms "published" and "unpublished" may translate more precisely to "precedential" and "nonprecedential," but opinions differ here as well. In many jurisdictions, including California and the Ninth Circuit, unpublished decisions may not be cited to a court in connection with its decision-making process. At the other end of the spectrum, e.g. the D.C. Circuit, some courts permit citation of unpublished opinions "as precedent."