Why Federal Courts Do Not Apply The Rule Of Law

This topic presented itself because of a phone call I received a couple of days ago from a lawyer who had a client that received second class treatment from the federal courts. Is it common? Last time I saw the number about 80% of federal cases treated the parties as second class citizens—the opinion is deemed non-precedential.

The lawyer called me because he believed I was a one man campaign against the practice of non-precedential opinions. There were a few others. The ABA opposes the practice, but not very loudly. Most law schools and law professors rather than being outraged and railing against the practice have largely been oblivious to the conduct, content to focus on the 20% of the cases that might appear in the case books.

In the next few blogs I will explore the history and review the attempts at judicial justifications for the practice. I will also try to pay tribute to a unique federal appellate judge who was equally troubled by this practice, and died tragically at far too young an age. Richard Arnold, was more than a fine judge—he was a fine person. Although I never met him in person, I enjoyed our numerous conversations on the topic.

Judge Arnold faced the consequences of this practice in its most blatant form. The government was arguing that the fact that a prior litigant whose position was factually indistinguishable had been found entitled to a refund could be ignored by the court who was free to rule against the present litigant because the prior decision had been designated by the Circuit as “non-precedential.” Judge Arnold expressed his concern like this:

If, for example, precedent is cited, and the other side offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated unpublished opinion, and no one will be the wiser… . Or after hearing oral argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel by deciding the case in an unpublished opinion and sweeping the difficulties under the rug…a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.

Anastasoff v. United States, 223 F. 3rd 898 ( 8th Cir. 2000); the opinion was vacated on other grounds.


-Larry Salibra
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