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October 8, 2000, Sunday
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Ideas & Trends: Unprecedented; Legal Shortcuts Run Into Some Dead Ends


TO cope with a flood of cases, appeals judges across the country are increasingly taking shortcuts that critics say undermine the fairness of the justice system, including issuing decisions that don't count as precedent and deciding thousands of appeals with one-word rulings, like ''Affirmed.''

Judges defended the shortcuts as essential to keep the courts functioning because litigious Americans were filing more and more suits. The critics of the fast-track techniques were long cast as disgruntled gadflies.

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a tax case, agreed with one of the critics' main assertions: that the courts ordered far too many of their decisions not be published in official law books.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Judges say unpublished opinions can be more succinct than full published rulings and can be issued without worrying about prior cases or the effect on future law.

Of almost 25,000 federal appeals rulings last year, over 17,000 went unpublished, according to government reports. In some state courts the proportion of unpublished rulings has climbed to more than 90 percent.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.''

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