Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Abstract

Unpublished opinions have become a fact of life in the federal circuit courts. Over eighty percent of all opinions issued by the federal circuits in the last few years have been designated "unpublished." The meaning of that designation has changed, however, since the birth of the limited publication plans. In the mid-1970s, the federal circuits adopted plans that sought to make some of their decisions unpublished, uncitable, and even non-precedent. That system has unraveled. Unpublished decisions are now routinely published in both commercial and public databases. Federal Rule of Appellate Procedure 32.1 now makes these decisions citeable. What remains is the most critical issue - whether denying these decisions' precedential weight is Constitutional. This issue was never addressed directly when the circuits' limited citation plans were put into place; it was viewed as a "morass of jurisprudence" that was better off avoided. Yet, several potential Constitutional infirmities with the practice of declaring some opinions non-precedential have been identified. This is ultimately an issue to be determined by the Supreme Court.

This article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, examines the Supreme Court jurisprudence on this issue. It examines what the Court has ruled, what petitioners have argued, and what individual Justices have stated in scholarly writings and separately written opinions. The Court has never accepted the circuits' assertion that these cases lack precedential value, but neither have they granted certiorari and addressed the issue directly. The Constitutionality of denying unpublished decisions precedential value is ripe for Supreme Court review. Given the fundamental nature of the issue, litigants ought to vigorously seek certiorari and the Court should grant it.

Keywords: unpublished opinions, precedent, constitutional law, supreme court

JEL Classification: K00, K40