Keeping Mum Kills Precedents
The National Law Journal
You are researching a critical issue for an appellate brief and you find a
case that is absolutely parallel to yours and from the same court.
"Eureka!" you cry. Then you see the local rule that forbids use
of unpublished opinions as precedent. Your perfect decision, rendered by
three wise federal appellate judges (wise because they agree with you),
might just as well not exist.
Judge Richard S. Arnold of the 8th U.S. Circuit Court of Appeals took on
this anomaly directly in his August 2000 decision in Anastasoff v. U.S.,
223 F.3d 898. There, a taxpayer sought a refund and made an argument
squarely rejected in an unpublished 1992 opinion.
In an opinion that had almost nothing to say about tax law but a great
deal about judicial power and the history of precedent in the law, Judge
Arnold and his colleagues told Anastasoff that she -- and the panel --
were bound by the earlier decision.
The local rule unconstitutionally expanded the scope of the Article III
judicial power. Anastasoff's case seemed destined for the Supreme Court,
but it met its demise not with a bang but a whimper. The Internal Revenue
Service changed its policy and paid Anastasoff her refund. The 8th Circuit
vacated the panel decision as moot. Arnold's constitutional analysis,
which will surely be resurrected in some other case, was right. But
unpublished-so-nonprecedential rules invite abuse and inconsistency.
IT'S HUMAN NATURE
That's less an indictment of the judiciary than a recognition of human
nature. Strict application of the law sometimes brings about unsettling
results. That's why a jury considering the case of a mother who has killed
her child's molester might absorb the damning evidence and still acquit.
Are judges any less tempted? I have no doubt that most of them swallow
hard and apply the law. But what if there were a mechanism to decide that
case in what seems the more just -- if not justifiable -- way and to
designate it as sui generis so that it does not foul the jurisprudential
stream? The harm would be considerable.
The law should be predictable. To the individual litigant, it matters not
at all if the opinion in his case becomes precedent. (I cannot imagine
Palsgraf in her later years sitting her grandchildren on her lap and
telling them, proudly, that, even though she lost, Chief Judge Cardozo
used her train station accident to establish the limits of a tortfeasor's
duty.) To litigants, their case is the most important one pending and they
want a predicable result.
In addition, the unpublished-so-nonprecedential rules invite a sometimes
remarkably uneven application of the law.
For example, in U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.
2000), the 9th Circuit announced that it was publishing its opinion on a
technical sentencing issue because the circuit had never addressed the
issue in a published -- and therefore precedential -- opinion. Instead,
over three years, different panels of the court had issued 20 unpublished
opinions that took three different approaches to the same issue.
One justification for the rules is that many cases do not involve unique
facts or explore the frontiers of jurisprudence. Accordingly, they do not
merit space in overcrowded law books. Because they would not be widely
available, they should not be considered precedent.
At one time, that was a good argument, but that time is long past. It
ignores the many new means of disseminating judicial opinions. Consider
the Internet. Every federal appeals court now has a Web site that posts
(and usually archives) published opinions. Most lawyers have access to the
Internet (or can gain that access at a nominal cost).
Moreover, the addition of more opinions to Lexis and Westlaw would not
likely increase their costs in any significant way. And, of course, courts
can require that counsel attach copies of unpublished opinions to briefs
that cite them. The point is that nowadays a decision that an opinion
should not be published in a book hardly means that the opinion will be
hidden away in a dusty filing drawer in the clerk's office.
Inaccessibility is no longer a viable excuse for the unpublished-so-nonprecedential
rules. With their rationale stripped away, they remain an invitation to
abuse and an impediment to legal uniformity.