The court's tangible work product also has changed dramatically in recent years. "Published opinions," Judge Jones wrote recently, "were once the hallmark of the appellate courts' work." [FN38] The traditional expectation was that an appellate decision would be expressed *282 in a written and fully reasoned opinion, and that the opinion would be published and added to the stock of precedent. [FN39] That expectation no longer exists. Rather, each circuit has a local rule identifying those opinions that it will publish. [FN40] Although the actual criteria differ among the circuits, the publication decision is based on the assumption that opinions which do not "make law" do not need formal publication; as a corollary, unpublished opinions are said to lack "precedential value" and usually cannot be cited as precedent. Given this underlying assumption, it is hardly surprising that published opinions today account for less than a third of federal circuit terminations. [FN41]

The decline in publication is unfortunate because the traditional, fully reasoned written opinion [FN42] serves a number of vital functions. [FN43] For instance, a published opinion enhances predictability. Even if the opinion does no more than restate existing legal doctrine, it can show how the doctrine applies to different facts. Publication thus increases certainty by increasing the stock of precedents. [FN44] Publication also hardens precedents because it is easier for a court to ignore one inconvenient precedent than ten. [FN45]

Publication also serves to hold judges accountable for their opinions. [FN46] Accountability encourages well-reasoned decisions. When a judge makes no attempt to provide a satisfactory explanation of the *283 result, neither the actual litigants nor subsequent readers of an opinion can know whether the judge paid careful attention to the case and decided the appeal according to the law or whether the judge relied on impermissible factors such as race, sex, political influence, or merely the flip of a coin. Perhaps few losing litigants will be persuaded by a carefully reasoned explanation, but that explanation will often reveal whether the judge treated the case seriously. [FN47] Moreover, full publication helps to insure that judicial opinions are readily accessible, certainly a necessary condition for the realistic evaluation of either a judge or a court.

Similarly, the signed opinion assigns responsibility. The author of a bad opinion cannot hide behind the shield of anonymity; blame, or praise- worthiness, is there for all to see. "By signing his name to a judgment or opinion the judge assures the parties that he has thoroughly participated in that process and assumes individual responsibility for the decision." [FN48] In contrast, the unpublished opinion (or order) rarely has an author other than that noted Norwegian jurist, " Per Curiam." [FN49] In per curiam decisions, blame or praise is spread out among three judges with the pernicious consequence of diffusing the judges' responsibility and accountability. Judges who cannot be held individually responsible either for the reasoning or the result have far less incentive to insure that they "get it right." More accurately, given the increasing reliance on staff to prepare opinions, the anonymous judge has far less incentive to see that they get it right.

Non-publication also diminishes the possibility of additional review. For all practical purposes, the courts of appeals are the courts of last resort in the federal system; fewer than one percent of their decisions receive plenary review by the Supreme Court. The limited appellate capacity of the Supreme Court makes it extremely unlikely that it will review an unpublished opinion. After all, a cogent explanation also makes it possible for a reviewing court to understand the case. [FN50] Without that explanation, the likelihood of discretionary review by an en banc court or by the Supreme Court decreases to the vanishing point. [FN51] Moreover, a reviewing court is far less likely to spend its own *284 resources on a case already determined to be without precedential value. Although review is very unlikely anyway, a litigant should not have the chances of review further reduced merely because a panel did not think the case worthy of an opinion.

The costs of non-publication are not limited to reduced predictability, accountability, responsibility, and reviewability. It should come as no surprise that unpublished dispositions are also dreadful in quality. In a study conducted fifteen years ago, we found that twenty percent of unpublished opinions in nine of the eleven circuits failed to satisfy a very undemanding definition of minimum standards, and that sixty percent of the opinions in three circuits failed to meet those standards. [FN52] There is no reason to think that the situation has improved in the years since. It is no wonder, therefore, that former Chief Judge Markey of the Federal Circuit once told his Circuit Conference that unpublished decisions were "junk" opinions. [FN53] One cannot help but ask, however, whether the losing litigants thought of their claims as "junk," or whether the definition of "junk" has changed over the years. [FN54]

It is not difficult to understand why unpublished opinions are dreadful in quality. The primary cause lies in the absence of accountability and responsibility; their absence breeds sloth and indifference. Moreover, a judge's mastery of the case is reduced when she does not publish. Every author knows that views often change as she actually begins to write and seek support for what she has to say. Writing out an opinion helps the author to understand the problem, to see things she otherwise would not see. [FN55]

*285 However poor the quality of unpublished opinions, they are Cardozoesque in comparison to the practice of issuing mere "Orders"-- dispositions that contain no explanation at all. [FN56] Orders fail any quality test. Their proffered justification is that it is unnecessary "to explain even to the loser, why he lost." [FN57] That statement is dead-wrong, even for the most frivolous cases. Explanation is fundamental to our system of justice. [FN58] Its absence in the one-word Orders effectively converts the statutory appeal of right into a denial of a petition for certiorari; in both cases the decision maker has declined to explain its decision. The difference, of course, is that the Supreme Court has been given statutory discretion to deny certiorari without explanation, while the circuit courts are under a statutory duty to hear every appeal. [FN59]

A final cost of non-publication stems from the problem of unequal access. The circuit courts limit public access to their unpublished opinions by restricting their distribution [FN60] and prohibiting their citation as precedent. [FN61] These no-citation rules were designed to off-set the advantages of well-financed and institutional litigants who might possess private data banks of unpublished opinions. [FN62] That *286 hope has not been realized. Even though they cannot cite unpublished opinions, repeat litigants (the federal government is an example), are able to catalog them and use their arguments. They also may request formal publication of those unpublished opinions that they believe will make favorable precedent. [FN63] In other words, such repeat litigants have been able to skew the precedent- setting function by obtaining publication of a favorable set of unpublished opinions. [FN64] The negative effects of these practices, once again, bear most heavily upon the poor and the weak. Once again, the losers are prisoner civil-rights litigants, disappointed social security claimants, and other under-represented litigants lacking both the resources to amass and catalog unpublished opinions and the clout and incentive to ask for publication of favorable precedents. [FN65]

---

 

 Morgan Press Release

 U.N.I.O.N. HOME

Hosted by www.Geocities.ws