No Good Deed Goes Unpublished: Precedent-Stripping and the Need for a New Prophylactic Rule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

See all articles by Edward Cantu

Edward Cantu

University of Missouri at Kansas City - School of Law

Date Written: November 22, 2009

Abstract

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doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions?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Keywords: unpublished opinions, precedent-stripping, non-precedential, procedural due process, judicial integrity

Suggested Citation

Cantu, Edward, No Good Deed Goes Unpublished: Precedent-Stripping and the Need for a New Prophylactic Rule (November 22, 2009). Duquesne University Law Review, Vol. 48, p.559, 2010, Available at SSRN: https://ssrn.com/abstract=1511242 or http://dx.doi.org/10.2139/ssrn.1511242

Edward Cantu (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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