No Good Deed Goes Unpublished: Precedent-Stripping and the Need for a New Prophylactic Rule
42 Pages Posted: 22 Nov 2009 Last revised: 24 Jul 2012
Date Written: November 22, 2009
This paper addresses the “open secret” that federal appellate courts often strip their opinions of precedential value as a means to forgo fair, principled and/or thorough adjudication of issues raised in appeals. Is there a basis in contemporary constitutional doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions? The author answers “yes.” The argument centers on case law establishing so-called “constitutional prophylactic rules,” which work to “overprotect” a given core right - that is, to create a presumption of constitutional injury without proof of it - when such is the only effective way of protecting the core right to any meaningful extent. The author couples this case law with sobering empirical data and entrenched theories of judicial power to argue that a new prophylactic rule forbidding “precedent-stripping” is necessary to ensure that appellate courts do not deny appellants full and fair adjudication of their appeals.
Keywords: unpublished opinions, precedent-stripping, non-precedential, procedural due process, judicial integrity
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