Making the Law: Unpublication in the District Courts

Abstract

In recent years, scholars have engaged the issue of systematic unpublication of judicial opinions in the appellate courts and the problems its poses for judicial accountability and transparency. And not just scholars.

Interestingly, amid all of the talk about unpublication on the appellate courts, the practice of unpublication in the district courts has gone essentially unnoticed.

In this Article, I address the issue of unpublication in the district courts from a normative perspective for the first time. I argue that unpublication in the district court context raises an even broader set of concerns than unpublication in the appellate context. My argument rests on two fundamental points. First, district courts play a unique institutional role in our system of adjudication, one that gives district judges exceptional power to make and shape the law. Indeed, from the perspective of a realist, district judges have even greater control over the law than do their appellate counterparts, and yet they often operate free from appellate oversight and public scrutiny. Second, in contrast to the appellate context, where even unpublished opinions are usually available for public review, in the district court context, unpublished opinions effectively disappear from the public's view. Thus, district courts, the central location of lawmaking in our system, are rendered opaque, and our district judges unaccountable.

The consequences of this opacity and unaccountability are serious. From the perspective of the legal academic, unpublication erects serious epistemological barriers; we cannot accurately describe, let alone assess, the law as it really is. This, in turn, has led to an unduly formalistic and distorted account of the law and of the district courts for ourselves and our students. But the epistemological problems are not merely the concern of those of us who study and critique judicial behavior for a living; there is a deep and fundamental problem with a system that creates a body of law and norms that are unknowable to the people they govern. And, from a practical standpoint, unpublication by district courts deprives district and appellate judges, attorneys, and those who are governed by district courts, of information about the law, distorting its development. Additionally, it subtly encourages judges to treat some cases with less care than with others, and allows them to make unprincipled rulings.

Keywords: courts, district courts, judges, district judges, unpublication, non-publication, unpublished, opinions, transparency, privatization