Unpublished opinions

A Slate piece, “Sotomayor’s Manly Man Ruling – Her bold ruling in favor of a man who claimed sex discrimination,” by Emily Bazelon, includes this paragraph on unpublished opinions:

Sotomayor agreed to issue an unsigned and unpublished opinion. The term “unpublished opinion” is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They’re shorter and often still carry less weight–they’re persuasive rather than binding precedent, in lawyer’s terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it’s hard to control. And in the 2nd Circuit, I’m told, there’s a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges’ eyes.

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

From Journal of Empirical Legal Studies, Vol. 6, No. 1, March 2009, pp. 213-39

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

Denise M. Keele, Robert W. Malmsheimer, Donald W. Floyd, Lianjun Zhang


Almost without exception, scholars have tested theories of judicial behavior by relying on published case decisions. Though understandable given the inaccessibility of unpublished cases, this focus means that scholars may be drawing conclusions regarding judicial behavior that do not accurately describe the motivational forces behind all judicial decisions. This study employed the attitudinal model of judicial behavior to empirically test whether published judicial opinions are representative of all opinions in litigation challenging the U.S. Forest Service. Results indicate that the effects of ideological preferences are different in published and unpublished opinions issued by appellate judges: judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions. At the district court level, judges did not follow their ideological preferences in either published or unpublished opinions and there was no difference between judges’ decisions in published and unpublished opinions. This research supports the contention that the process of judicial decision making in the courts of appeals differs between published and unpublished opinions and that scholars should use caution in drawing conclusions from examinations of published opinions alone.

The Strategic Content Model of Supreme Court Opinion Writing

 

“The Strategic Content Model of Supreme Court Opinion Writing”

YONATAN LUPU, University of California, San Diego – Department of Political Science

JAMES H. FOWLER, University of California, San Diego – Department of Political Science

The Supreme Court’s reasoning in a decision, including the precedent it cites in support of that reasoning, can be as significant as the outcome in determining the long-term impact of a case. As a result, the content of opinions can be used to provide important new insights into existing debates regarding judicial politics. In this article we present a strategic content model of the judicial process, which demonstrates how opinion content results from the strategic interaction between justices during the Court’s bargaining process. This is the first article to show on a large scale that the extent to which a majority opinion writer cites authoritative precedent is systematically influenced by the decisions and ideology of other justices. We find that the Court generates opinions that are better grounded in law when more justices write concurring opinions. This demonstrates that justices write concurring opinions based not just on a preference for making their opinions known, but also to influence the reasoning relied on by the majority opinion. We also show that diversity of opinion on the Court, a factor often overlooked in the political science literature, has a significant impact on the extent to which a Court opinion cites authoritative precedent. Finally, our results provide a novel test of the agenda-control and median-justice models. We find that the ideology of the median justice influences the citation of precedent in the majority opinion, whereas the majority opinion writer’s ideology does not, suggesting that agenda-setting powers are not as strong as previously claimed.

 

Source:  LSN Law & Rhetoric Vol. 2 No. 24,  03/27/2009

Justice Ginsburg’s Footnotes

“Justice Ginsburg’s Footnotes”

New England Law Review, Vol. 43, No. 4, 2009
Boston Univ. School of Law Working Paper No. 09-12

JAY WEXLER, Boston University – School of Law

In this short article written for the New England School of Law’s March Symposium on Justice Ruth Bader Ginsburg, I report on what happened when I embarked on a project of trying to read every single footnote Justice Ginsburg has ever written as a justice on the Supreme Court. As the article relates, this project was impossible to complete because Justice Ginsburg, it turns out, has written a lot, lot, lot of footnotes. Instead, I ended up reading all of Justice Ginsburg’s footnotes from three of her terms. In the article, I develop a nine-part taxonomy of Supreme Court footnotes and categorize Justice Ginsburg’s notes according to this taxonomy. The study reveals that, among other things, Justice Ginsburg does not use her footnotes, as some humor writers do, to make jokes. Also, she does not follow in the footsteps of the late, great David Foster Wallace and use footnotes to mirror the fractured nature of reality in her work. Instead, Justice Ginsburg uses footnotes to, for example, provide background information regarding cases under review, point out important aspects of case history, and respond to the arguments of other justices.

Source: LSN Law & Rhetoric Vol. 2 No. 22,  03/20/2009

Wikipedian Justice

“Wikipedian Justice”

RAGHAV SHARMA, National Law University, Jodhpur

This short article highlights the increasing reliance by Indian courts on Wikipedia. The Supreme Court seems to have accepted Wikipedia as a reliable source of information. The article discusses how far such judicial reliance is warranted on Wikipedia.

Source: LSN Law & Courts Vol. 3 No. 21,  03/10/2009

“Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum”

 

Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum

JOSH BLACKMAN, George Mason University – School of Law

From the birth of our Republic, starting with Chief Justice Marshall in Cohens v. Virginia, judges and scholars alike have grappled with the distinction between holding and dictum. However, neither the judiciary nor the academy has been able to come up with a consistent and workable definition of these two concepts. This article attempts to shine some light on this perplexing issue.

This article proceeds as follows. In Part I, I will discuss some of the simpler, yet unsatisfying definitions of dictum, and introduce some of the easy cases, where distinguishing dictum from holding is relatively straightforward. Next, I will chronicle the Supreme Court’s erratic approach to dealing with dictum, and show how this uncertainty has left a gaping void in our jurisprudence. Next, I will discuss prior scholarly attempts to define dictum, and show why their approaches are inadequate, as they only focus on Supreme Court cases, and ignore how the inferior courts treat the distinction.

In Part II, I will confront the task where others have not ventured, and systematically survey and analyze over four hundred court cases that distinguish between dictum and holding. After explaining my methodology and framework, I will attempt to answer three critical questions. First, what is dicta worth? Second, whose dicta must/should/can courts follow? Third, how do courts define dicta? These three questions reveal clues to understanding how courts have treated dictum, and what the distinction means in practice.

In Part III, I will analyze the results from Part II. Based on the arbitrary nature with which courts define dictum, and the varying weight courts assign to dictum, even from superior courts, I conclude that the holding/dictum distinction is a standardless standard. Unlike generally accepted standards of review, labeling an opinion as holding or dictum is an entirely subjective process, which I argue enables judges to easily evade precedent without needing to justify the departure; or in the alternative create precedent where none existed before. Next, I analyze precedent, stare decisis, and dictum through the lenses two jurisprudential schools, legal formalism and realism. I conclude with a legal realist argument, that the distinction between dicta and holding is inextricably linked with a judge’s views on precedent.

Source: LSN Law & Rhetoric Vol. 2 No. 1,  01/06/2009

The Curious Appellate Judge: Ethical Limits on Independent Research

“The Curious Appellate Judge: Ethical Limits on Independent Research”

 ELIZABETH G. THORNBURG, Southern Methodist School of Law

Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal – involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. This combination of felt need and ready access has turned a once-marginal concern into a dilemma that affects courts and litigants daily. The problem of judicial research has always been with us, lurking in the margins, and yet we do not have a workable framework for discerning when it is and is not permissible. We can no longer fail comprehensively and rigorously to engage this question, because it is now taking on a central importance to proper judicial decision-making in an increasing number of cases. The stakes are high. Whether and when judges independently may research cuts to the very heart of our adversary system of justice: these questions implicate directly the ethical role of the judge, the balance between fairness and efficiency, the rights of the parties, and how we view the rule of law. This article therefore argues that states should reject the current proposal and adopt instead a rule that provides clear guidance to judges, notice to litigants, and transparency to the judicial system.

 

Source: LSN Law & Courts Vol. 2 No. 61,  10/28/2008

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Marquette Law Review, Vol. 92, 2009
NSU Shepard Broad Law Center Research Paper No. 08-012

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

 

Unpublished opinions have become a fact of life in the federal circuit courts. Over eighty percent of all opinions issued by the federal circuits in the last few years have been designated “unpublished.” The meaning of that designation has changed, however, since the birth of the limited publication plans. In the mid-1970s, the federal circuits adopted plans that sought to make some of their decisions unpublished, uncitable, and even non-precedent. That system has unraveled. Unpublished decisions are now routinely published in both commercial and public databases. Federal Rule of Appellate Procedure 32.1 now makes these decisions citeable. What remains is the most critical issue – whether denying these decisions’ precedential weight is Constitutional. This issue was never addressed directly when the circuits’ limited citation plans were put into place; it was viewed as a “morass of jurisprudence” that was better off avoided. Yet, several potential Constitutional infirmities with the practice of declaring some opinions non-precedential have been identified. This is ultimately an issue to be determined by the Supreme Court.

This article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, examines the Supreme Court jurisprudence on this issue. It examines what the Court has ruled, what petitioners have argued, and what individual Justices have stated in scholarly writings and separately written opinions. The Court has never accepted the circuits’ assertion that these cases lack precedential value, but neither have they granted certiorari and addressed the issue directly. The Constitutionality of denying unpublished decisions precedential value is ripe for Supreme Court review. Given the fundamental nature of the issue, litigants ought to vigorously seek certiorari and the Court should grant it.

 

Source:  LSN Law & Courts Vol. 2 No. 55,  09/29/2008

Tabloid Constitutionalism: How a Bill Doesn’t Become a Law

Here’s a fun one:

Tabloid Constitutionalism: How a Bill Doesn’t Become a Law

Brian C. Kalt
Michigan State University College of Law

Georgetown Law Journal, Vol. 96, No. 6, — August 2008, p. 1971-1985
MSU Legal Studies Research Paper No. 06-12

Abstract:

What does it take to get Congress to pass a law? To get a judge to declare a statute unconstitutional? To get your law-review article featured in the National Enquirer? Based on one data point, at least, I can say that two of those three things are difficult.

This piece is a follow-up to my 2005 Georgetown Law Journal article, The Perfect Crime. Back then, I argued that there is a fifty-square-mile swath of Idaho – a so-called zone of death – where one can commit crimes with impunity.

In this piece, I first discuss the attention that The Perfect Crime generated: it was covered not just by the Enquirer but by mainstream media, and it inspired a best-selling novel.

I next discuss my efforts to lobby Congress. I initially tried to get Congress to change the law. When that failed, I tried to get Congress to acknowledge my existence. That effort essentially failed as well, at least until a senator read the aforementioned novel.

Finally, I discuss the treatment of my theory in an actual criminal case where the defendant invoked it. The handling of the theory there was almost as dispiriting as Congress’s.

The theory I set out in the Perfect Crime had plenty of limitations and counterarguments; it is not my intention in this piece to criticize people for disagreeing with me. Rather, my intention is just to recount one case study – amusing in some parts, infuriating in others – of the American system of government and law.

The Ethical Conundrums of Unpublished Opinions

Here’s a new, all-you-ever-wanted-to-know plus more article about unpublished/depublished/non precedential/etc. decisions:

“The Ethical Conundrums of Unpublished Opinions”

Shenoa L. Payne

44 Willamette Law Review 723-760 (2008 )

INTRODUCTION

I. BACKGROUND AND HISTORY OF UNPUBLISHED OPINIONS

   A. The Emergence of Unpublished Opinions

   B. The Original Justifications for No-Citation Rules

   C. The Electronic Availability of Unpublished Opinions

   D. The Debate over No-Citation Rules: The Loud Roar from the Eight Circuit

   E. The Treatment of Unpublished Opinions by State Courts and Federal Circuits

II. DEPUBLISHED OPINIONS: WHEN DECISIONS MOVE FROM PRECEDENT TO SECRET

   A. The Depublication Process in the California Courts

   B.  The Changing the Message Behind Depublicaton

   C.  The Criticisms of Depublication

   D.  The Counterarguments

   E.  The Alternatives to Depublication

   F.  The Responsibilities of Lawyers Regarding Depublication and Precedent

III. FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A REAL CHANGE?

   A.  Background

      1. The Value of Unpublished Opinions

      2. The Necessity of Unpublished Opinions for Busy Courts

      3. The Increased Costs of Legal Representation

   B. The Text of Federal Rule of Appellate Procedure 32.1

   C. Is Federal Rule of Appellate Procedure 32.1 a Real Change?

IV. COURTS SHOULD BE REQUIRED TO GIVE UNPUBLISHED OPINIONS THE RESPECT THEY ARE OWED.

   A. Skidmore v. Swift & Co.

   B.  Considerations that Give an Unpublished Opinion “Power to Persude,” if not “Power to Control”

      1. Factually Indistinguishable Cases

      2. Issued by the Same or a Controlling Court

      3. Concerns a Unique Question of Law or Fact

      4. Possesses Other Factors that Give it Power to Persuade, if not Power to Control

   C. The Goal of Uniformity

   D. Guidance for Attorneys

   E. Judicial Accountability and Judicial Efficiency Concerns: A Good Balance

V. SOME PRACTICAL IMPLICATIONS

   A. Why Do Attorneys Want to Use Unpublished Opinions?

   B. Can Attorneys Provide Competent Representation Under No-Citation Rules?

   C. Are Attorneys Able to Provide Diligent Representation in the Face of No-Citation Rules?

   D. Can an Attorney Argue Points Based on Unpublished Opinions Without Bringing a Frivolous Claim?

   E. Does an Attorney Ethically Have to Cite an Unpublished Opinion Contrary to His or Her Position in   Jurisdictions Where No-Citation Rules are Banned?

   F. Is Ignoring Unpublished Opinions in Criminal Cases a Violation of the Constitution?

CONCLUSION

With the availability of unpublished opinions, the original reasons for no-citation rules no longer justify their continued existence. In the face of a long and heated debate, FRAP 32.1 is a step  toward appropriately addressing the problems associated with unpublished opinions. Citation to unpublished opinions is extremely important. However, FRAP 32.1 is extremely limited and allows unpublished opinions only to reach the very bottom tier of precedent, which does not require courts to give unpublished opinions any particular weight.

Courts should employ a uniform rule requiring a Skidmore type deference that gives unpublished opinions respect when due based on four factors: (1) if the facts are indistinguishable; (2) if the unpublished opinion is issued in the same or a controlling court; (3) if the opinion addresses a unique question of law or fact not addressed in published opinions; and (4) all those other factors which give it power to persuade, if lacking power to control. Such a rule would bring uniformity to the treatment of unpublished opinions across federal circuits, give strong guidance to attorneys in assessing their cases, and balance the concerns of judicial efficiency and judicial accountability.

Attorneys face real ethical conundrums even though FRAP 32.1 has prohibited no-citation rules in federal circuits. Attorneys are still bound to (1) local federal rules for unpublished opinions issued prior to January 1, 2007 and (2) the rules of the state courts in which they practice. This means that attorneys must carefully consider their ethical duties of competence, diligence, candor toward the tribunal, the appearance of frivolous claims, and also consider whether they are violating their duties of effective assistance of counsel owed to criminal defendants. Until a uniform rule is in place, such as requiring a Skidmore type deference, attorneys will continue to face challenging ethical conundrums in relation to unpublished opinions.