For some number of years, judges and academics have debated the pros and cons of "unpublished," or "nonprecedential," judicial opinions in the federal appellate courts. Academics largely, although not unanimously, decry the practice of issuing opinions that the courts designate, by rule, as nonbinding. They argue that issuing nonprecedential opinions runs counter to the rule of law by permitting arbitrary decisionmaking, violating the Due Process and Equal Protection Clauses, and rendering meaningless the principles of stare decisis that presumably constrain judicial decisionmaking. Judges largely, although not unanimously, defend the use of nonprecedential opinions, primarily on the ground that they are essential for docket management. Judges say that the number of cases on their dockets makes it impossible to draft precedential opinions in every case while still resolving cases within a reasonable time. Further, they say that limiting the number of precedential opinions is necessary for doctrinal coherence and consistency, as well as to keep the number of precedents litigants must research to a manageable quantity. Finally, they say that most cases are routine and do not break new legal ground, thus making their disposition with short, unofficial opinions both efficient and appropriate.
This is not an abstract legal debate. Nonprecedential opinions have become the dominant mode of disposition for cases resolved on the merits in the federal appellate courts. The numbers vary somewhat by circuit, but overall 84% of opinions issued by the federal courts of appeals are nonprecedential. 12 Although frequently referred to as unpublished opinions, nonprecedential opinions are, in fact, published in any meaningful sense of the word. Accordingly, they exist as statements of law whose status is indeterminate. Do these opinions bind the conduct of actors in society? Can or should lawyers use them to advise clients? When, if ever, should courts feel constrained by nonprecedential opinions? The bottom line is that the federal appellate courts have created a new substratum of precedent that does not fit neatly within the recognized hierarchy of federal decisional law but into which the majority of federal appellate opinions fall. As one commentator recently stated: "Anyone who states that lawyers and judges have a common understanding of how to handle unpublished decisions is either misinformed or less than candid."
Amy E. Sloan,
If You Can't Beat 'Em, Join 'Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts,
86 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol86/iss4/4