NYTimes.com Article: Federal Appeals Court Decisions May Go Public
This article from NYTimes.com
has been sent to you by rvh40@insightbb.com.
Many (most?) Court of Appeals cases in Kentucky are unpublished, and the RCP
forbids their citation.
On at least one occasion the KY Supreme Court ordered an appellate decision
to be unpublished, and then they adopted the KY App. decision verbatim and
issued it as their own! (That's the tale that was told when I was in law
school, anyway - I don't know if it is true or not, but it seems plausible).
rvh40@insightbb.com
Federal Appeals Court Decisions May Go Public
December 25, 2002
By ADAM LIPTAK
About 80 percent of decisions issued by the federal appeals
courts are tickets good for one ride: they decide only the
particular case, and they do not establish binding
precedents.
In many parts of the country it is unlawful even to mention
these one-time rulings in legal papers submitted in later
cases, and judges have been very resistant to change the
policies.
"We may have decided this question the opposite way
yesterday," Richard S. Arnold, a federal appeals court
judge in Arkansas, wrote in describing the current system,
"but this does not bind us today, and, what's more, you
cannot even tell us what we did yesterday."
But the prohibitions may soon be easing. On Jan. 1, the
United States Court of Appeals for the District of Columbia
Circuit and the Texas Supreme Court will reverse their
restrictions on citing these so-called unpublished
decisions. Systemwide change seems to be on the horizon,
too.
Last month, an influential committee of the administrative
arm of the federal courts proposed a rule that would
require all federal appeals courts to allow citation of
unpublished decisions.
"It's a major, major development," Arthur D. Hellman, a law
professor at the University of Pittsburgh, said of the
proposal. "There has been so much resistance to this at the
judicial level for more than 20 years now."
Stephen R. Barnett, a law professor at the University of
California, said developments in the individual courts more
generally reflected a growing "aversion to secret law."
"It has reached a tipping point," Professor Barnett said.
Supporters of the current rules say, however, that any
reliance on unpublished decisions, which are generally
brief and may not be carefully reasoned, will corrupt the
system.
"If flipping a coin that you know is bad is better than
nothing," said Judge Alex Kozinski of the United States
Court of Appeals for the Ninth Circuit, "it's better than
nothing."
The rule against citing a court's own decisions back to the
court is in many ways odd.
"It is difficult to justify a system that permits parties
to bring to a court's attention virtually every written or
spoken word in existence except those contained in a
court's own nonprecedential opinions," wrote Patrick J.
Schiltz in the draft minutes of the November meeting of the
Advisory Committee on Appellate Rules, which is proposing
the systemwide change.
"Nonprecedential" is an unlovely word, but it is more
accurate than "unpublished," which technology has turned
into a misnomer. Not long ago, most unpublished decisions
were not only absent from the law books but were also truly
generally unavailable. With the advent of legal databases
and courts' own Web sites, almost everything issued by
appeals courts is widely and almost instantly available.
And since September 2001, "unpublished" decisions have been
collected and published in the literal sense, in books
called West's Federal Appendix.
The general availability of unpublished decisions has
eliminated a crucial objection to allowing them to be
cited. Before technology leveled the playing field, it was
considered unfair for institutional litigants, like
corporations repeatedly sued on similar claims, to be able
to collect and selectively cite from a body of law
unavailable to their adversaries.
The Justice Department proposed the rule adopted in
principle by the court system's committee last month. It
was put forward in the Clinton administration, but
Solicitor General Theodore B. Olson said the government
continued to support it.
"When courts decide things, they don't just disappear and
become a hidden trove of law," Mr. Olson said.
But when it came time to vote, Mr. Olson's representative
on the committee abstained. According to the draft minutes,
the abstention followed a phone call from Judge Kozinski to
Mr. Olson.
Mr. Olson said the concerns of several judges on the Ninth
Circuit, which covers nine Western states, prompted him to
move cautiously.
"The immense size of the circuit, the number of judges
there and the huge volume of work they handle make it very
difficult for them to monitor all of the decisions of their
colleagues," he said, describing the judges' objections.
Judge Kozinski said the huge size of the circuit was one
aspect of the problem. But he emphasized that unpublished
decisions, often prepared by staff lawyers, were fair to
the parties but were "worth nothing at all" as precedent.
"They simply don't get vetted the way that binding opinions
do," he said. "Having them available as a source of wisdom
is simply a fraud."
The current rules are a patchwork.
Five of the 13 federal appeals courts, covering the
Northeast, the West and much of the Midwest, ban citation
of unpublished opinions, but the First Circuit, which
covers most of New England, is considering a change. The
Fifth and 11th Circuits, which cover six Southeastern
states, allow citation of unpublished opinions but do not
make them generally available, making the question largely
moot. The remaining circuits allow but generally disfavor
such citations.
The large majority of state courts restrict the citation of
unpublished cases.
In the California state court system, 94 percent of all
appellate decisions are unpublished, and their citation is
forbidden.
In Texas, the appeals court in Dallas did not publish 97
percent of its cases in recent years, said Charles L.
Babcock, the chairman of an advisory committee to the Texas
Supreme Court. The appeals court in Beaumont, by contrast,
Mr. Babcock said, published about half of its decisions.
"The law is not more weighty and interesting in Beaumont,"
Mr. Babcock said, "yet it was having a much bigger impact
than the Dallas court's decisions."
The arguments about whether citation of unpublished
decisions should be allowed is one of three related issues
involving such opinions. The second is whether courts are
bound to follow such decisions as precedent. And the third
is whether litigants are even entitled to a statement of
the appeals court's reasoning. About 1,350 of the 29,000
decisions issued by the federal appeals courts last year
consisted of a word or a phrase (usually, "affirmed") and
contained no reasoning.
Though allowing citation of unpublished opinions would not
mean that they have the force of binding precedent,
opponents say that it would inevitably push judges in one
of two unacceptable directions.
They would either work harder on unpublished decisions, at
the expense of published decisions or of the efficiency of
the judicial system generally. Or they would dispense with
reasoning entirely.
Judge Kozinski said he had already altered his approach to
unpublished decisions.
"I have now started saying less and less to the parties,"
he said.
Writing an opinion binding on future courts, on the other
hand, Judge Kozinski wrote last year, "is an exacting and
extremely time-consuming task" that sometimes requires 70
or 80 drafts over several months.
Some scholars say there are worse things than exerting some
pressure on judges to spend a little less time on some of
their longer decisions.
"While courts should be thorough in major cases," Professor
Hellman said, "they don't have to treat every aspect of the
case with 20 footnotes."
http://www.nytimes.com/2002/12/25/national/25DECI.html?ex=1041793782&ei=1&en=ea555e3c2111119e
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