Tuesday, June 20, 2006

"Done" Scotus: On using unpublished opinions

"Scotus decisions" are a new concern of law librarians. It refers to the new rule that will become part of the Federal Rules of Appellate Procedure, (affecting unpublished federal court opinions prospectively only, from January 1, 2007 onward). I had an experience as a young law librarian that changed my point of view on the matter of unpublished opinions. When I was relatively new to the field, I was asked to show off Westlaw and Lexis searching to a visiting justice from Ireland's high court. This was the 1980's and it seemed very glitzy and high-tech still to have such search capabilities. But the justice was not impressed; he was instead, appalled. He noticed that a good number of the decisions I pulled up with my searching were unpublished, and also the sheer number of results. He much preferred, he said, to rely on the selected decisions published in Anglo-Irish law. That way, you relied on only the best and soundest reasoning. This was the way American law decisions were published until West began to build its National Reporter system.

I understand the desire to be able to find any opinion that will support the result you are arguing for. I, too, practiced law, and had cases that cried out for use of unpublished opinions. But maybe there is a reason you should not have published those opinions in the first place. Maybe the decision was just in this narrow situation, or perhaps the reasoning relied on was poor or badly written. I suspect the biggest effect of the change in citation rules will be that federal judges will have to take more hand in writing opinions, overseeing the work of their clerks, and thinking of posterity with every written order they produce.

The change is causing all sort of uproar in the law library community.

For one thing. Lexis-Nexis has sent the letter noted in this blog link, telling firm subscribers that they will now offer all-circuits unpublished opinions in a separate database, that must be paid separately. Previous to this, subscribers to the combined federal database, or any single circuit or court, could access many of that jurisdictions' unpublished opinions in that database. These were gathered somewhat haphazardly, and I suppose the new database will gather all written orders from all federal courts. Academic librarians are bracing for changes to our subscriptions, too, we fear.

We are also concerned that the rule change will affect the need to locate unpublished decisions from before 1/1/07. Librarians wonder: How to locate unpublished decisions, (and what amounts to a "publicly available database," mentioned in the rule change)? An excellent treatment of finding unpublished decisions is located, by the way, in Where the Law is: An Introduction to Advanced Legal Research by J.D.S. Armstrong and Christopher Knott (Thomson West Casebook Series), 1st edition. Very helpful.

I have long been troubled by the uneven rules among circuits governing the use of unpublished decisions. It made a very irregular and unjust usage. Depending on where you lived, the precedent applicable would vary. Even worse, many courts in circuits which had rules prohibiting citation of unpublished decisions regularly used them for precedent in their own decisions. It made the principles underlying stare decisis unworkable. You should be able to know ahead of time what law will apply to the case you are researching. Use of unpublished opinions in some decisions and not in others, also raised the decision-making of courts to a level of secrecy and unpredictability that may have abridged constitutionality.

But I am also troubled by the new rule. I was taken with the quote attributed to ninth circuit judge Alex Kozinski, who said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys. He added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."

A nice summary of the events from Tony Mauro of the Legal Times also at law.com (though you have to register at law.com, it's free; this is a link with no registration required, to a Lancaster, PA newspaper site link:

Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them -- in the same way lawyers cite rulings from other circuits or other authorities, such as law review articles.

"This change will facilitate lawyers' representation of their clients, and it will facilitate the courts' informed decision of future cases," said Mark Levy of Kilpatrick Stockton, a member of an advisory committee that recommended the change. "It will also bring national uniformity to the process."

At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys. He added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."

The committee Kozinski was referring to, the Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-3rd Circuit Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Roberts Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, Wednesday's vote may have been unsurprising. There was no indication in the Court's order whether any justices dissented or did not participate.

The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment in the rule change it promulgated Wednesday.

Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges. Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.

Amendment filed by Chief Justice John Roberts, Jr. to the Federal Rules of Appellate Procedure, new Rule 32.1:

A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgements or other written dispositions that have been:

i) designated as "unpublished," "not for publication," "non-precedential," "not for precedent," or the like; and

ii) issued on or after January 1, 2007.

A nice report from the Scotusblog.com folks on Posner's book review in The New Republic online that actually reviews the Supremes' use of law clerks to draft opinions, and requiring secrecy surrounding the Court's deliberations. Making sausage, indeed: link.

My title above is a terrible pun on the venerable Scottish theologian of the late Middle Ages, John Duns Scotus. I therefore decorated this essay with an image of that Scot, from a Franciscan website in Netherland, www.ofmconv.nl/pics/albsco/Scot03.jpg

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