Wednesday, August 06, 2008

Why Federal Courts Do Not Apply The Rule Of Law Part 2

Click here to read Part 1

Part 2 In The Beginning

If you ask proponents in the federal judiciary to justify the practice of non-precedential, unpublished opinions, they list of serious sounding justifications—things like these cases have a clear and undisputed outcome and don’t add to the development of the law—things like that? Are these really the reason for the initiation of the practice?

Yes and no is the answer. We will review these explanations and the critical studies on their validity in future blogs. But the primary motivation for the practice was that books were too expensive. Presumably, there was some effort in selection to try to select the important cases for publication. However, trying to do that and successfully doing that are two different things and presumably, there can be some negative consequences if you are wrong—for instance when the facts of non-precedential cases prove to be more relevant to future circumstances than the case that is published.

The idea was that publishing all the cases put small practitioners at a disadvantage because they could not afford to maintain the libraries of large firms—by limiting publication the disadvantage would be minimized. Not such a bad notion if case law really had that much relevance to determining the outcomes of a case—a notion we will examine in a future blog.

However, not long after the policy was adopted its justification was eliminated by technology with services like Lexis and Westlaw, and now the internet generally. The potential technological impact of these new services was like solder-in vacuum tubes to make portable radios small (I have a few hanging around) that had a life span that was so short most people my age that lived through their existence, probably never saw one. Transistors eliminated the vacuum tube portable radio in a flash. Paper law libraries had a longer life span.

Paper libraries lived on in large firms long after technology made them irrelevant since they had become a marketing show piece for client tours as well as functional entities. Their cost was also hidden in law firm overhead and not separately charged, and of course, there was the ability to maximize associate billing time by making associates walk to the library and around it if the book they were looking for was out of the stack.

So why does the practice of un-published, non-precedential opinions live on? We will examine that in future blogs.

-Larry Salibra
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