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

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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If you ask proponents in the federal judiciary to justify the practice of non-precedential, unpublished opinions, they list of serious sounding justifications—things like these cases have a clear and undisputed outcome and don’t add to the development of the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things and presumably, there can be some negative consequences if you are wrong—for instance when the facts of non-precedential cases prove to be more relevant to future circumstances than the case that is published.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So why does the practice of un-published, non-precedential opinions live on?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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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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