But for the first time, the critics' arguments
are finding their way into mainstream legal thinking. The most
important sign of change was a startling federal appeals court ruling in
August that said federal courts violated their constitutional power with the
no-precedent rulings, giving the critics their biggest victory ever.
The decision, by a three-judge panel of the United States Court of
Appeals for the Eighth Circuit in St. Louis, has some legal experts
saying a review of appeals procedures nationally now seems necessary. ''I
think we've reached a point where everybody's going to ask, 'Has this gone
too far?' '' said Arthur D. Hellman, an expert on appeals courts at the
University of Pittsburgh School of Law.
The three-judge panel, deciding a tax case, agreed with one of the
critics' main assertions: that the courts ordered far too many of their
decisions not be published in official law books. By most courts'
definition, such rulings cannot be used as precedent for other cases, which
the critics say encourages inconsistent rulings that sometimes seem based on
whim or bias.
Judges say unpublished opinions can be more succinct than full published
rulings and can be issued without worrying about prior cases or the effect
on future law.
Of almost 25,000 federal appeals rulings last year, over 17,000 went
unpublished, according to government reports. In some state courts the
proportion of unpublished rulings has climbed to more than 90 percent. The
result, say the critics, is a vast underground body of law.
The panel in St. Louis agreed. ''The judicial power to determine law is a
power only to determine what the law is, not to invent it,'' said the
opinion by Circuit Judge Richard S. Arnold, an influential judge who was
considered for the Supreme Court in the early years of the Clinton
administration.
The ruling came after a number of other signs that the critics of
judicial shortcuts were making progress.
In February, the American Bar Association took aim at the one-word
opinions. A bar association resolution called on all appeals courts to
provide ''at a minimum, reasoned explanations for their decisions.''
Last year, the federal appeals court in Philadelphia changed its policy
and decided to limit its use of one-word decisions. In addition, several
other federal appeals courts have recently changed their rules to allow
lawyers to refer to unpublished rulings, even though those rulings are not
binding as precedent.
THE California legislature considered, but did not pass, a bill last
spring that would have required that all state appeal opinions be publicly
available and valid as precedents. But that there were legislative hearings
on the bill showed more responsiveness to the issue than there had been in
the past, as California brothers Kenneth and Michael Schmier could attest.
After they lost a real estate case in the 1980's, the Schmiers turned
attacks on court shortcuts into a vocation. They sued the California
Supreme Court over the issue, lost, and are now asking the United States
Supreme Court to review their case. Michael Schmier ran for California
attorney general and United States senator in recent years on the
single-issue platform of ending the shortcuts. He failed, and both
brothers have grown accustomed to seeing their battle described as
eccentric.
''I suppose the idea that you can stand up and try to force the judiciary
of America to change is nuts,'' Kenneth Schmier said in an interview last
week.
That may be changing. Like the California legislators who sponsored the
bill considered last spring, the three federal judges in St. Louis said the
appeals shortcuts raised fundamental questions. The nation's
founders, the decision said, intended federal judges' decisions to become
precedent, with each case setting the foundation for later law.
As a result, Judge Arnold wrote, the panel had to follow the reasoning of
one of the court's earlier decisions even though that decision was
unpublished. Circuit Judge Gerald W. Heaney and United States District Judge
Paul A. Magnuson agreed.
LEGAL experts say the panel's ruling can be reversed by the
full 10-member Court of Appeals and may reach the United States Supreme
Court. But ''whatever happens to that case, this issue won't go away and
will only get larger,'' said Stephen R. Barnett, a law professor at the
University of California at Berkeley.
The decision applies only to federal courts but lawyers say similar
claims are certain to be made in state appeals courts.
Judges who criticized the ruling said the courts would grind to a halt if
every case were treated as a precedent. Alex Kozinski, a judge on the
federal appeals court in San Francisco, said making every case count as
precedent would force judges into unnecessary writing on routine matters.
''It is a fallacy,'' Judge Kozinski said, ''to think having more out there
is better. More garbage is not better.''
