One of my pet peeves has been the rule against even mentioning so-called “non-precedential” or “unpublished” opinions in briefs filed with federal appellate courts. Dennis Crouch and Law.com are both reporting that the Supreme Court has now voted to change long-standing rule and allow citation to such previously off-limits decisions. It’s about time.
This whole business of “non-precedential” decisions has always struck me as both silly and dishonest. It’s like saying certain historical facts and events are “non-citable” and hence off-limits for inclusion in the history books. Either something happened or it didn’t. Either the court decided something or it didn’t. If we are going to pay heed to the idea of stare decisis — and there are serious questions whether we even should — it’s intellectually dishonest to gut the principle by simply pretending certain inconvenient cases were never decided.
Surprisingly, Judge Kozinski of the Ninth Circuit — a judge whom I respect and usually agree with — opposes the rule change and supports keeping things the way they are. In his words, “When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.” True. But the real problem lies not with the committee but with the faulty sausage itself. If future litigants shouldn’t have to consume the “sausage” of an ill-considered decision, why should the parties to that particular case have to eat it either?
As also reported in the Law.Com article, “Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted ‘entirely’ by law clerks and staff attorneys.” Thanks for the explanation, Judge. I’m sure that brings great comfort to whoever lost big as a result. (Personally, I suspect this procedure is also true for even the published opinions, but that’s a matter for another day.)
Fundamentally, however, the problem is not with who writes the decisions and in what level of detail. The real question is whether all cases, or just some, are going to be decided on the basis of the law and facts by the people entrusted, not to mention paid, by society to do so. Or are we going to tolerate cutting corners and sweeping the problem under the rug by designating the more embarrassing results “non-precedential”? If it’s ultimately a matter of overburdened courts — and it may well be — then we either have to provide the resources to do the job right or perhaps rethink, and cut back on, what matters should even be delegated to the courts in the first place.