It is clear to every lawyer and judge that many written opinions do
not warrant publication.
Opinions that are designated for publication will involve cases that
have broader importance.
Unlimited proliferation of published opinions constitutes a burden
and a threat to a cohesive body of law.
A tentative determination can be made at a very early stage the
process of decision-making that the case is one that does not warrant a
published opinion.
Given the workload in the courts today, the capacity of judges and
lawyers to research, produce, and assimilate the substance of judicial
opinions is dangerously near its limits. In some systems, those limits
may already have been exceeded.
Publication of opinions burdens the work of writing opinions. The
court should be able to disclose its reasoning to the parties without a
judge having to acquit his legal scholarship in every opinion.
The production of opinions places intolerable burdens on judges and
their staffs.
The burden on the lawyer is commensurate with that of the judge in
terms of research.
Too much opinion-writing undermines collegiality. The collegial
process of an appellate court requires consideration by all members of
the court of all opinions of that court, whether or not they are to be
published. However the burden is substantially lighter when a brief
opinion is written in order to dispose of the issues raised with reasons
stated, for the benefit of the litigants and their counsel, and when the
opinion is not intended for publication. The time saved can better be
utilized for consideration and resolution of critical issues. This
avoids erosion of collegiality.
The logistical burden for the courts and practitioners has become
dangerously heavy. Posting, maintenance, shelving, and librarian
services of bound volumes result in time and money costs
disproportionate to the value of the materials.
Nonpublished opinions can be short, do not need to cite all the law,
and deal mainly with facts as they relate to law.
The burden on the publishing industry to continue to supply complete
reporting services at prices that are tolerable appears to be beyond
their capacity.
As the number of opinions grows, law finding devices inevitably
proliferate and expand. This inevitably creates a loss of precision and
sophistication.
The public has no necessary interest in most decisions. The
underlying legal issue, rather than the case or controversy, must be a
public interest and that interest must be a continuing nature and not
merely transitory. Public interest thus must be distinguished from
public curiosity.
The impact of nonpublished opinions is minimized because they cannot
be cited.