It's time to end the patently
unfair practice of selective precedent
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"unpublished."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"disfavor" citation of unpublished cases and decree that such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or the government -- whose lawyers might selectively cite unpublished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
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