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It's time to end the patently unfair practice of selective precedent

Roger Parloff
The American Lawyer

In April 13, 1996, Faye Anastasoff, a now retired St. Louis County grade school teacher, mailed in a tax refund claim.

She was trying to recover $6,436 that she had overpaid for the 1992 tax year. She sent the claim two days before the April 15 deadline, although it was not actually received by the Internal Revenue Service until April 16. Fortunately, under the IRS's "mailbox rule," tax returns are deemed received when postmarked.

But the IRS rejected Anastasoff's claim. Pro bono lawyers at St. Louis-based Bryan Cave, led by Philip Wright and Juan Keller, then sued on her behalf. When they did, government lawyers defending the case provided them with a copy of Christie v. United States, a 1992 8th U.S. Circuit Court of Appeals precedent that was directly on point. It explained that, for complex reasons, the mailbox rule did not apply in these precise circumstances.

Oddly enough, until the government gave them a copy of Christie, the Bryan Cave lawyers had never heard of it -- and not for any lack of diligent research on their part. Christie is among the three-quarters of federal appellate decisions that are now "unpublished." It's not in the West Publishing Company's reporters or digests, and it's not on Lexis or Westlaw or the more specialized online services used by tax lawyers. Only the IRS lawyers, who defend these cases every day, knew about Christie. Surprise!

But isn't that patently unfair? Yes, which is why most federal appeals courts, including the 8th Circuit, now either forbid or "disfavor" citation of unpublished cases and decree that such cases are not precedent. That rule protects individuals from being blindsided by institutional litigants -- e.g., banks, insurance companies, or the government -- whose lawyers might selectively cite unpublished decisions they have collected and filed in private libraries. So, when then-Bryan Cave associate Gregory Hewett was asked about Christie at oral argument, he responded that, under the 8th Circuit's rule, Christie was not precedent.

That's an imperfect solution to the problem. It means that the 8th Circuit can decide a case one way on Tuesday and the other way on Wednesday, without overruling itself, distinguishing the earlier case, or even acknowledging any discrepancy.

Circuit judge Richard Arnold of Little Rock -- a very serious candidate for the 1994 U.S. Supreme Court nomination that ultimately went to Justice Stephen Breyer -- has voiced discomfort with unpublished decisions for years, both in judicial advisory committee meetings and, last year, in an article in The Journal of Appellate Practice and Process.

So, when the Anastasoff case came before him, he finally seized the moment. On August 22, writing for a unanimous panel, he declared unconstitutional the local rule that decrees that unpublished rulings are "not precedent." "The judge's duty to follow precedent derives from the nature of the judicial power itself," Arnold concluded, and by purporting to free themselves from the constraints of precedent, the 8th Circuit judges had exceeded the "judicial power" as defined in Article III of the U.S. Constitution. (Since it rests on an interpretation of Article III, Arnold's ruling has no mandatory impact on state court practices.)

As a matter of constitutional law, Arnold's opinion is less than airtight. But as a matter of policy, it's dead-on.

At this late date -- about 35 years after unpublished opinions arrived on the scene -- complaining about them is a sure-fire way to brand oneself an irrelevant gadfly or an ivory-tower purist. So, it's important to emphasize that Arnold was trying to be eminently practical. He did not ban unpublished decisions. Nor was he suggesting that precedents are inflexible straitjackets that may never be discarded. On the contrary, by following the cruel Christie precedent -- which would deprive Anastasoff of money that was rightfully hers -- Arnold was implictly inviting the 8th Circuit to rehear her case en banc and to overrule Christie in a principled, explicit fashion if justice so required.

Instead, the animating force behind Arnold's ruling was the simple recognition that technological improvements -- specifically, the now universal availability of online law libraries and databases -- have supplied us with a literal deus ex machina that solves the quandary long posed by unpublished decisions.

In the 1960s, as our society became more litigious, the volume of appellate cases began to explode. From 1960 to 1999, for instance, appellate filings rocketed from 3,899 to 54,693 (more than 1000 percent), while the number of appellate judges only increased from 68 to 179 (less than 200 percent). As judges struggled to deal with the crushing load, the number and length of oral arguments shrank, while reliance on clerks and staff attorneys increased. In 1964 the Judicial Conference recommended that judges only publish opinions "which are of general precedential value." That way they could produce opinions more rapidly (there being less temptation to labor obsessively over style and polish) while slowing the rabbit-like propagation of thick Federal Reporter volumes, which were expensive to purchase and house -- both for the judiciary and the bar.

But although unpublished opinions were originally supposed to be used only in cases that would not advance the case law, current practice belies any such limitation. In 1999, 78.1 percent of all federal appeals decided on the merits culminated in unpublished opinions, ranging from 45.4 percent in the 1st Circuit to 90.1 percent in the 4th.

Nevertheless, in recent years part of the problem associated with publishing opinions -- creating needlessly expensive libraries -- has vanished. Opinions can now be disseminated and accessed electronically. Indeed, all but three of the circuits -- the 3rd, 5th, and 11th -- now actually publish their "unpublished" rulings by releasing them to Westlaw and Lexis, albeit with cautionary warnings that lay out that circuit's limitations on citation. (Christie is not available online only because it was decided in 1992, before the 8th Circuit began electronically publishing its unpublished decisions.)

But if unpublished decisions can now be -- and most are -- published in a way that all lawyers can easily find, what's the harm in citing them as precedent? The answer is embarrassing but obvious. Many judges now feel that they handle unpublished cases in such a hasty, slapdash manner that they don't feel sufficiently confident in their own reasoning to want those cases to serve as precedent. "If this is true," Judge Arnold writes in his opinion, "the remedy is not to create an underground body of law good for one place and one time only." He calls for either creating enough judgeships to handle the volume or tolerating the backlog required "to do a competent job with each case."

Some states, like California, have reached the point where they openly settle for a compromised system of justice. The Supreme Court of California routinely "depublishes" appellate opinions that it suspects may have been wrongly decided -- banning lawyers and lower courts from citing them as precedent -- yet leaves the hapless litigants forever bound by that same suspect reasoning.

But the federal courts have not yet come to that, and Arnold was right to throw a constitutional wrench in the gears to try to prevent further devolution in that direction.

How can we ask the public to respect judges' decisions, if the judges themselves don't?

Copyright Chris Hansen

By: Chris Hansen
Last revision: May 25, 2009 10:40 AM
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