February 3, 2015

Federal appellate courts mark 88% of their opinions as "unpublished," meaning that they are not to be regarded as precedent...

... even though we can see these opinions, so they are, literally, published. Adam Liptak, who writes about the Supreme Court in the NYT, notes a recent "unpublished" 4th Circuit opinion that Justices Thomas and Scalia wanted to review:
“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”
I don't think judges have the power to designate their opinions as lacking in power as precedent (though they're certainly capable of saying in advance that they don't find their own opinions worth much). I could go into more detail about the nature of judicial power, but this is a blog post, and I'll get right to something Liptak wrote that caught my attention:

In April, a federal appeals court issued a 40-page decision on a serious subject.... The judges voted 2 to 1, suggesting that the legal question the decision resolved was a hard one. But the decision was “unpublished”...  That means it set no precedent. It was a ticket good for only one ride.
 A ticket good for only one ride.... That's a phrase I've mostly seen in connection with the Supreme Court case of Bush v. Gore. It's a criticism of the Court for reaching an outcome without stating a general rule that can be used as precedent and even going so far as to point that out. Here's Liptak writing about Bush v. Gore in 2008:
The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

“Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

That sentence, translated from high legal jargon into English, was often taken to mean this: The decision was a ticket for one ride only. It was not a precedent. It was a ruling, yes, but it was not law.
And here's Liptak writing about Bush v. Gore in 2003:
The Supreme Court's decision in Bush v. Gore was meant to be a ticket good for one ride.

''Our consideration is limited to the present circumstances,'' the justices said in their unsigned opinion in 2000, ''for the problem of equal protection in election processes generally presents many complexities.''

Three judges on the federal appeals court in San Francisco, all appointed by Democratic presidents, decided yesterday to use it for another ride anyway....
As well they should! An opinion is precedent because the case was decided, and the courts of appeals cannot (and should not) claim a power to obliterate the precedential value of a case by using their "unpublished" designation any more than the Supreme Court could actually determine that Bush v. Gore wasn't meant to be used in any other case. Of course, the Supreme Court did not say exactly that in Bush v. Gore. But it said something that many critics of the decision have paraphrased that way, and you should understand why that paraphrase works as a criticism of the Court, why it accuses the Court of abuse and arrogance.


Laslo Spatula said...

Horrible to be a citizen, with your future being held in the balance, judged to the low standard of "don't quote me on this."

Seems like this very statement of 'unpublished' would be grounds for an appeal: other people can be randomly held to a different standard than the one I was judged with.

The Law of Moving Goalposts. Pathetic.

I am Laslo.

The Drill SGT said...


Anonymous said...

May be one could get a season pass too for 50 years (or 100) ?

Decisions for "holistic admissions" could use those, no ?

rhhardin said...

In Bush vs Gore there was a violation of a convention, that the loser goes away when it's close in the interest of making the vote publicly final.

When it's close, it doesn't matter which way it goes as far as democracy goes, but it matters a lot that the vote as it came in decides it.

The court put an end to violation of an underlying violation, not of law but of a convention necessary for stability of democracy.

It's not a law ruling. It's a grow-up ruling.

Ann Althouse said...

"It's not a law ruling. It's a grow-up ruling."

Why are you narrowly defining "law"?

"The life of the law has not been logic; it has been experience."

rhhardin said...

They can't find a supporting law, really.

The law doesn't depend on itself. It depends on a certain amount of goodwill and deference, and, lacking that, gunfire.

Much different from emotion. Probably the opposite. A convention.

DKWalser said...

The Tax Court has a formal process for its informal "memorandum" decisions. If the issues in question do not appear to implicate material issues of law, the Court assigns only one judge to hear the case. The resulting decision is a memorandum decision and is not considered binding on future Tax Court cases. If the case involves material issues of law, the Court assigns three judges to hear the case. The resulting decisions is a "regular" decision and is binding on future Tax Court cases. Regular decisions sometimes cite memorandum decisions for support, but the Court is not required to follow the memorandum's holding.

The system works fairly well, as long as the Tax Court follows its rules. Sometimes memorandum decisions involve significant issues of law. An example is the 2012 decision in Wandry. That decision, which was taxpayer favorable, triggered an earthquake in the estate planning community. Many have relied on Wandry. Problem is, none of us know what a future Tax Court panel might do with the exact same issue.

khesanh0802 said...

Laslo hits it right on the head out of the gate.

I am not a lawyer (thank God), but my feeling is that one of the most important aspects of the law should be consistency. To be consistent opinions/rulings should be published so that others in and out of the legal profession can depend on them.

Is it cowardice on the part of these judges to not publish them? Are they not convinced that their decision is correct? What exactly is their motivation and/or justification for this?

Chuck said...

But Professor Althouse...

As litigators, I have sometimes used unpublished opinions in briefs, on matters that were otherwise unprecedented. The basic problem in the pre-internet era is that they were so had to search and locate in the first place. When I cite them in briefs, I know darn well that a court doesn't have to accept them as binding precedent. But I cite them anyway.

Heck; I've cited published appellate decisions on matters that I thought WOULD bind the court, only to have the court "distinguish" the case.

And since when did the Supreme Court worry about being bound by the Fourth Circuit? (I know that there is more to the case at issue in Liptak's story, but my point still stands in general.)

There are lots of good reasons to have some cases go as unpublished; and there is, I think a good bit less importance to be attached to all of it than some of your readers are now presuming based on your blog post.

The other side to the story is that making everything "published" can make the case law MORE, not less, messy. The fact that a prior case has been determined in an unpublished appellate decision does not mean that it will be decided wrongly later on; it doesn't even mean that lawyers can't talk about it or a judge can't consider it. It just doesn't open the case up to an essentially peripheral argument; whether or not precedent is being violated. After which, there can usually be an appeal to a supreme court.

Sky said...

Unpublished opinions are issued when the circuit court is applying established law to an unremarkable set of facts - they are not supposed to be used if any new principle is articulated in the opinion.

For example, the circuit courts get a lot of appeals from criminal defendants arguing insufficient evidence when there was more than sufficient evidence for conviction. There are plenty of published cases stating that, e.g., you can be convicted on eyewitness testimony alone. If that is the defendant's only argument - and a large part of the docket is quickly resolved with reference to existing law - then he will get a ruling immediately with a summary order. It has no effect on that defendant's rights; it just isn't typically referenced by anyone else and doesn't go in the federal reporter.

Published opinions get more review and editing to ensure that the precedent is clearly stated. The federal appellate courts have a huge backlog; opinions take a few months to a year.

In my experience summary orders were not used if any judge on the panel filed a dissent, as that meant there was something to be discussed.

Beldar said...

This is very much "inside baseball," but I'll play.

Last I checked (many years ago), every federal judicial circuit had wrestled with this issue, and there were several competing approaches, typically expressed in "Local Rules" which purport to define and limit an unpublished opinion's precedential value, and which purport to restrict their later citation in other legal venues. At one time, some circuits' rules were so limiting that a lawyer risked sanctions -- up to and potentially including loss of one's privilege to appear before that court in other cases, or even eventual state disbarment -- if he or she dared to cite an unpublished opinion. But there were indeed constitutional objections raised to that, and now the written rules vary from circuit to circuit but none of them (last I looked) prohibit citations of unpublished opinions in all contexts anymore.

This isn't just a problem in federal courts, either. In Texas, for example, we have 14 intermediate appellate courts scattered around the state, and their decisions are subject to discretionary review by the Texas Supreme Court (or in criminal cases, the Texas Court of Criminal Appeals). When I began practicing in 1980, even routine and trivial appeals generated some sort of published opinion with precedential effect. But in the years since, I've seen the "unpublished" designation seriously abused by those intermediate appellate courts, specifically to make it less likely that the Texas Supreme Court would accept discretionary review. And I can think of at least one case in which I'm 100% convinced that at least two members of the panel recognized that their unpublished written opinion was making very bad law, or at least very dangerous law, that the Texas Supreme Court would have overturned if the intermediate court had published its opinion, but that they believed they could effectively insulate from review by leaving unpublished. And in that instance, the strategy worked. (Twenty years later, I'm still furious.)

When I clerked on the Fifth Circuit, my judge and those whom she respected took very seriously -- and frequently discussed with one another -- their obligation to actually go on record, and risk condemnation or reversal, via written, published, and precedential decisions. But since then, in practice, I've seen many occasions on which I believe appellate judges have failed in that responsibility.

azbadger said...

Sky is correct about unpublished opinions. I don't think it is accurate to say they are non-precedential. Prior to 2007, unpublished decisions could not be cited. Rule 32.1 changed that and allows unpublished decisions to be cited. The appellate court then decides how much weight to place on the opinion, given its reasoning, etc.

Now, some courts use unpublished decisions to dodge Supreme Court review, since they are persuasive authority only. The Ninth Circuit has done this quite a bit in reasonable suspicion cases. The judges can freely rule in favor of a defendant (not withstanding the general pro-government law on stops), with little fear that the Supreme Court will reverse or that the Solicitor General will even recommend cert.

A few years ago, SCOTUS did reverse the 9th Circuit's unpublished decision in Felkner v. Jackson, which found a Batson violation.

Beldar said...

This problem of unpublished opinions, by the way, is both a function of the increased absolute number of lawsuits and resulting appeals, and also of the onset of the digital age: Not only are their vastly more appeals today which can potentially generate precedents (which by itself means a greater risk of conflicting and inconsistent precedents), it's now possible to index and key-word search those opinions by computer within hours of their release by the appellate courts.

With apologies, then, I'll share a longish war story to illustrate just how discovery of an "unpublished" appellate opinion can suddenly change things for later litigants in other cases:

In my very first jury trial after starting practice, I was the third-chair defense lawyer in a serious personal injury case with two plaintiffs. One was an undocumented alien who was subject under federal law to immediate deportation; the other was a U.S. citizen. Before jury selection, the plaintiffs' lawyers made a motion in limine asking that the defense be prevented from asking about or mentioning either plaintiffs' citizenship/deportation-risk status. We opposed that, arguing that the jury was entitled to discount the evidence on the undocumented alien's future earnings potential because they were based on the assumption that he'd have been earning wages in the U.S., when in fact he was subject to deportation. But the trial judge ruled that the unfairly prejudicial value of one plaintiff's undocumented status outweighed the probative value of the evidence, so he granted the motion in limine.

I was tasked by my colleagues that night to look for precedent to re-argue the point the next day. And in the West keynotes and bound volumes of prior Texas appellate decisions, I found no useful precedents to help us.

But then I used that new-fangled computer thing called "Lexis," which my firm had just invested in. We had one terminal, in a phone closet, for the 300+ lawyers in the firm, but that was okay, because only a dozen of us who were brand new graduates knew how to use it or were even interested in doing so.

And lo and behold, using Lexis' full-text searches (which pick up things West's headnote/key number system indexers miss), I found a brand new, two-week old, as-yet-unpublished decision from an intermediate appellate court that was directly on point, and went our way: A trial judge had been reversed for making exactly the ruling our judge had just made.

So I printed out the unpublished decision (on tractor-feed computer paper, of course), and toted it to court the next morning, at which point I got to make my first speech to a real judge as a real lawyer, urging this judge to reverse himself. He did, reluctantly.

Thereupon the very canny plaintiffs' lawyers immediately said, "Well then, Judge, we waive our claims for lost future income for [that plaintiff], so now his citizenship's irrelevant again." The judge agreed, and the evidence stayed out. But when the verdict form was submitted for the jury's consideration, there were no questions, and no blank to be filled in, for only that plaintiff's lost future income -- and the jury noticed, and sent out a note saying, "Where's the blank for ____?" Jury trial lawyers will recognize that as a very poor indication for the defense team; and indeed, this jury returned a monster verdict in favor of both plaintiffs, but they awarded a couple hundred thousand dollars less overall to the one without a lost future income blank.

These days, of course, computerized legal research -- no longer limited to Lexis/Nexis and Westlaw, although those are still useful -- is universal. An opinion designated as "not for publication" can now be found as easily as if it were published in the bound dead-tree numbered volumes.