The Anastasoff Case and the Judicial Power to "Unpublish" Opinions

39 Pages Posted: 6 Sep 2008

See all articles by Thomas R. Lee

Thomas R. Lee

Government of the State of Utah - Utah Supreme Court; Brigham Young University - J. Reuben Clark Law School

Lance S. Lehnhof

affiliation not provided to SSRN

Date Written: September 4, 2008


Judge Richard S. Arnold's Eight Circuit panel opinion in Anastasoff v. United States (2000) used a historical treatment of precedent to declare the circuit's rule on unpublished opinions unconstitutional. Because, in Arnold's view, this historical treatment of precedent was incorporated in the "judicial power" conferred on the federal courts under Article III, the Eighth Circuit panel struck down as unconstitutional the unpublished opinion rule relied on by Ms. Anastasoff.

To the extent the current literature expressly addresses Judge Arnold's historical argument, it does so without confronting three essential premises in his argument: (1) that the "declaratory theory" of law was adopted by the Framers and is inconsistent with the modern treatment of unpublished opinions; (2) that the Framers' conception of precedent was static and not subject to further evolution; and (3) that the original understanding foreclosed the possibility of a hierarchy of varying levels of judicial precedents.

This Article seeks to fill the void by offering comprehensive answers to these fundamental questions left open by the existing commentary. After describing in Section I the facts of the case and the essence of Judge Arnold's opinion, Section II begins by placing his position in pragmatic perspective. Here, the Article outlines some unforeseen implications of the constitutional objection raised by Judge Arnold, and concludes that the practical consequences of adherence to Anastasoff should at least produce some skepticism as to whether it is a constitutional mandate. Then, in Section III the Article evaluates Judge Arnold's premise that the original understanding of the judicial power precludes a rule that would deprive unpublished opinions of precedential effect. Ultimately, we conclude that the founding-era conception of precedent cannot be reconciled with the historical model proposed by Judge Arnold, and in fact that the original understanding is most closely in line with the merely persuasive weight generally accorded unpublished opinions today. Moreover, we also reject Judge Arnold's assertion that a hierarchy of precedents is historical anathema-since the notion of a lower class of precedent finds a list of fairly close historical analogues.

Keywords: Precedent, stare decisis, judicial power, unpublished opinions, Anastasoff v. United States (2000), original understanding, Article III, declaratory theory, hierarchy of judicial authority, summary dispositions, equally divided courts, custom of the realm

Suggested Citation

Lee, Thomas R. and Lehnhof, Lance S., The Anastasoff Case and the Judicial Power to "Unpublish" Opinions (September 4, 2008). Notre Dame Law Review, Vol. 77, pp. 135-173, 2001, Available at SSRN:

Thomas R. Lee (Contact Author)

Government of the State of Utah - Utah Supreme Court ( email )

450 South State Street
Salt Lake City, UT 84114
United States

Brigham Young University - J. Reuben Clark Law School ( email )

519 JRCB
Brigham Young University
Provo, UT 84602
United States

Lance S. Lehnhof

affiliation not provided to SSRN

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