Abstract

http://ssrn.com/abstract=2113917
 
 

Footnotes (60)



 


 



Copy-Paste Precedent


Brian Soucek


University of California, Davis - School of Law

July 19, 2012

13 Journal of Appellate Practice and Process 153 (2012)

Abstract:     
The federal appellate courts now decide eighty-five percent of their cases through unpublished, nonprecedential opinions. These are meant to resolve disputes squarely governed by existing precedent; they are not supposed to make law. Scholars have paid little attention, however, to the process by which unpublished opinions are prepared — or to ways in which this process allows some unpublished opinions to become de facto precedent.

This essay identifies one such way. “Copy-paste precedent” arises when the text of an unpublished opinion gets repeatedly copied and pasted by staff attorneys drafting subsequent opinions on the same topic. Whereas ordinary precedent is meant to be reasoned and published, then cited and quoted, “copy-paste precedent” gets followed without being either cited or explicitly quoted, thereby gaining the influence of precedent without real precedent’s authority — or scrutiny. The obscurity of copy-paste precedent makes it, paradoxically, harder to correct or overturn than regular binding precedent and strips it of the rule of law, legitimacy, notice, and reliance values standardly invoked to support precedent's use.

Drawing an example from the Second Circuit's largely unpublished case law on the meaning of “social visibility” in asylum law — the subject of a deepening circuit split and a recent en banc opinion in the Ninth Circuit — this essay shows that copy-paste precedent can prove even more influential than a circuit's precedential statements on the same subject. This essay calls attention to a set of decisions in which the law that gets copied and pasted is substantively mistaken. Its broader goal, however, is to show why copy-paste precedent is itself a mistaken way for courts to make law.

Number of Pages in PDF File: 20

Keywords: precedent, immigration, asylum law, social groups, social visibility, Second Circuit

Accepted Paper Series


Download This Paper

Date posted: July 20, 2012 ; Last revised: August 7, 2013

Suggested Citation

Soucek, Brian, Copy-Paste Precedent (July 19, 2012). 13 Journal of Appellate Practice and Process 153 (2012). Available at SSRN: http://ssrn.com/abstract=2113917 or http://dx.doi.org/10.2139/ssrn.2113917

Contact Information

Brian Soucek (Contact Author)
University of California, Davis - School of Law ( email )
400 Mrak Hall Dr
Davis, CA 95616
United States

Feedback to SSRN


Paper statistics
Abstract Views: 1,926
Downloads: 306
Download Rank: 53,362
Footnotes:  60

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.328 seconds