Depublishing Opinions

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

15 Responses

  1. Steve Schultze says:

    Let’s back up a step. The notion of “published” vs. “unpublished” opinions is a very counter-intuitive notion to anyone new to reading caselaw and precedent. I confess that I am still sometimes bewildered by the distinctions. As I understand it, the distinction arose as a result of the hard-copy print mode of disseminating decisions. Some court reporter — either the court itself or a private party — had to decide which cases were “important” enough to bother with the printing costs. Cases printed in these reporters were considered precedential both because somebody had decided they were important, and because the courts believed that the body of case law that should count as precedent should be the same body of case law that was generally accessible. Over time, this published/unpublished distinction began to be proactively used by judges as a way to designate some opinions as non-precedential (if, perhaps, they didn’t feel terribly confident about how solid the reasoning and fact pattern would prove to be in future cases). To do this, they simply began declaring that some decisions were published and others were “unpublished.” This seems like a bad idea to me (if it’s a decision it’s a decision, your reasoning should be strong enough to be precedential or you should rethink your reasoning!), but nevertheless most reporters followed their wishes. Perhaps somebody can follow up with actual citations to these claims, but this is what I recall.

    However, in an era in which caselaw reporting is no longer limited by printing costs, the initial motivation for the distinction has begun to evaporate. West now publishes many “unpublished” opinions, and has started new reporters like the Federal Appendix consisting entirely of such decisions. At the federal level, FRAP 32.1 permits attorneys to cite many unpublished opinions. Here’s a nice overview:

    http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Unpub_Opinions.pdf

    The courts themselves are now making available “unpublished opinions” via their web sites and the official electronic record. Nevertheless, this silly distinction is perpetuated by judges because “unpublished” opinions are still given less precedential weight in practice.

    Peter Martin has an interesting article about a similar scenario playing out in Arkansas State Court:

    Abandoning Law Reports for Official Digital Case Law
    Cornell Legal Studies Research Paper No. 11-01
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1743756

    “The Arkansas Supreme Court also took the jettisoning of print reports as furnishing sufficient rationale for it to heed calls from both bar and state legislature that lawyers and judges be allowed to cite “unpublished” decisions. The expense of print dissemination had led the Arkansas appellate courts, like many others, to limit the number of decisions they published and to refuse to consider the rest as binding precedent. With the cost barrier removed, the Arkansas Supreme Court concluded that all its decisions and, more importantly, all those of the Arkansas Court of Appeals should, going forward, be citable as precedent.”

    I think that the distinction between unpublished and published opinions is ridiculous today. The notion that a court can “depublish” a lower court’s opinion is even more ridiculous.

  2. Bill Reynolds says:

    An extended discussion of unpublished opinions and related topics in the federal circuit courts can be be found in an article I wrote with Bill Richman: Elitism, Expediency, and the New Certiorari: Requiem for the Learned hand Tradition, 81 Cornell L. Rev. 273 (1996). We also have a book on the same topic, Injustice on Appeal (Oxford) coming out in the Spring.

  3. Texas had a notation, writ ref’d n.r.e. that fit the same role. That was a very weak affirmance, basically stating that whatever the errors were in the court of appeals decision, they weren’t enough to reverse it now.

    The n.r.e decisions were published, but that notation was a warning to be careful in citing and applying them.

  4. Dan Cole says:

    What’s the effective difference (if any) between an “unpublished opinion,” as described by Steve Schultze (above), and a published opinion in which the court expressly denies that its decision should serve as precedent in any future case (a la Bush v. Gore).

  5. A.J. Sutter says:

    I think we need to back up two steps at least. I’m a California lawyer, and went to a state law school in California at a time when depublication was more common than today, so even though I’m not a litigator I’ll throw in my two cents, for what they’re worth:

    (a) “The notion that a court can ‘depublish’ a lower court’s opinion is even more ridiculous.” You might think so, @Steve Schultze, but don’t argue that in a California court. It’s the law: see Cal. Const. art. VI, § 16; Cal. Rules of Court 8.1125 (formerly numbered as Rule 979).

    (b) “Some court reporter — either the court itself or a private party — had to decide which cases were ‘important’ enough to bother with the printing costs.” Nope, on a couple of counts. First, an appellate court (not the reporter, NB) in California can decide to direct that certain decisions not be published in whole or in part, pursuant to certain criteria set out in a rule. Cal. Rules of Court 8.1105, 8.1110 (both previously numbered as Rule 976). And second, the practice to which Gerard refers is entirely different: depublication of an already published opinion.

    (c) The standard explanation for this practice was proposed in a 1984 article by Justice Joseph Grodin, in which he said that the opinon is depublished because the Cal Supremes “consider the opinion to be wrong in some significant way,” e.g. the right result, but the wrong reasoning.

    (d) The practice was always controversial, but seems to have become even more so after a rules revision in 1990, in which a new paragraph (e) was added to Rule 979, providing that an order to depublish “shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.” (This survives today in slightly modified form as 8.1125(d): “A Supreme Court order to depublish is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.”) To some commentators, this seemed to pull the rug out from under Grodin, J.’s explanation.

    (e) Nonetheless, it’s worth noting that the practice of depublication has fallen off sharply from its heyday 20 years ago. According to a recent (May 2011) blog post by appellate firm Horvitz & Levy, the number of decertifications, which peaked at around 110 annually around 1990, was just 4 in FY2009-2010.

  6. Steve Schultze says:

    Hey AJ, your description of the state of things in CA is fascinating. It sounds like “depublication” is dying a slow death… in part because of the ridiculousness I describe.

    Your description of the court itself designating opinions published or unpublished is entirely consistent with my description of the history. The point I was making was that originally the distinction arose as a result of print publication and the capacity of the public and judiciary to access and know caselaw (with publication choices often being made by the reporter rather than the judge). Over time, judges began to assert more control over the status of their opinions — by indicating their wishes in the opinion and relying upon newly developed rules of the type that you describe. Depublication is not “entirely different.” It’s just a further permutation of this already questionable practice, and part of the historical trend I describe.

    In any case, I recommend this Q&A with David Cleveland and his two articles that it links to, which give the historical context of unpublication in the federal courts in far more depth:

    http://lawprofessors.typepad.com/law_librarian_blog/2008/10/unpublished-opi.html

    Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. ___ (2009)
    Complaints about the growing body of case law are certainly not new. However, the modern unpublication system was set in motion in 1964 when the Federal Judicial Conference recommended that the United States Courts of Appeals consider reporting only those decisions that would be of

  7. Steve Schultze says:

    Hmm, it seems that the site cut off the quotes. Here’s the rest of it:

    Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. ___ (2009)
    Complaints about the growing body of case law are certainly not new. However, the modern unpublication system was set in motion in 1964 when the Federal Judicial Conference recommended that the United States Courts of Appeals consider reporting only those decisions that would be of

  8. Steve Schultze says:

    Odd. Let’s try this one more time. Moderators feel free to fix my multi-post.

    Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. ___ (2009)
    Complaints about the growing body of case law are certainly not new. However, the modern unpublication system was set in motion in 1964 when the Federal Judicial Conference recommended that the United States Courts of Appeals consider reporting only those decisions that would be of general precedential value

  9. Steve Schultze says:

    Ok, I think I found the gremlins this time. This is what you get for copy-pasting from a PDF.

    Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. ___ (2009)
    Complaints about the growing body of case law are certainly not new. However, the modern unpublication system was set in motion in 1964 when the Federal Judicial Conference recommended that the United States Courts of Appeals consider reporting only those decisions that would be of general precedential value in order to deal with the ever increasing practical difficulty and economic cost of establishing and maintaining… law library facilities.” Little action was taken on this suggestion until the 1973 Federal Judicial Center’s Advisory Council on Appellate Justice issued a report, Standards for Publication of Judicial Opinions, recommending limited publication and citation that included a draft plan for circuit courts to adopt. [...] Such a progression, from nonpublished to noncitable to nonprecedential, seems logical and in its own way almost necessary. Limited publication is not a new idea; it dates back to the earliest reporters, which were selective in what they published. But declaring decisions to be uncitable and, moreover, not precedent was contrary to jurisprudential theory underlying the common law paradigm. This removal of decisions from the body of common law was a fundamental shift in the common law system.

    Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J.App.Prac. & Process ___ (2009)
    This shift was born not out of a philosophic or jurisprudential need to prune the law; rather, it was created because of a need to reduce the expense of publishing, collecting, and maintaining law libraries as well as reducing the workload of the federal judiciary and lawyers. [...] Yet many of the Committee’s pragmatic concerns are no longer valid in light of the present state of legal information technology and practices. And those that remain must be weighed against the inherent value of precedent to our legal system, either as an intrinsic limit imposed by our Constitution or as a proper practice for the good of our legal system.

  10. A.J. Sutter says:

    I can’t speak about the rationales given in the federal system; your cite seems to suggest that costs were mentioned explicitly there. But I don’t think that either costs or the print medium are necessarily pertinent to the general case. And at least in California, I think one does need to distinguish between the choice by an appellate panel not to publish (such as Cal. 8.1105) from depublication (such as Cal. 8.1125).

    Printing costs might plausibly influence the lower court’s choice, though that’s not officially an explicit rationale in California. The standards given in the rule are affirmative standards for certification for publication:

    (c) Standards for certification: An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:

    (1)Establishes a new rule of law;

    (2)Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;

    (3)Modifies, explains, or criticizes with reasons given, an existing rule of law;

    (4)Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

    (5)Addresses or creates an apparent conflict in the law;

    (6)Involves a legal issue of continuing public interest;

    (7)Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;

    (8)Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

    (9)Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

    (d) Factors not to be considered: Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.[Emphasis added.]

    So if all the criteria (1)-(9) are unmet, then a court may consider printing costs, among other factors — though the rules don’t explicitly mention such costs at all.

    Moreover, there’s a deeper issue than costs, namely performativity. The “utterance” of a court opinion has the legal effect of making the opinion part of the body of precedent in the jurisdiction. This is just as true, BTW, about an electronic utterance as it is about a print utterance.

    When it comes to depublication, there isn’t any economic saving because the lower court decision has already been published. That’s why it’s entirely different from the economically-based practice you describe. If anything, there’s an added cost, since databases, printed editions of Shepard’s, etc. have to be revised to reflect the depublication. The decision to depublish is based on nullifying the performative effect of the lower court’s utterance. This is what Justice Grodin’s explanation is about. Moreover, even a lower appellate panel, in making a decision whether or not to publish an opinion that doesn’t meet (1)-(9), might base its decision on the desire to withhold performativity from the opinion. So even at that level, cost considerations might not be the sole basis for the decision.

    Again, there isn’t any necessary connection to the print medium: electronic publication is performative. Your assertion that “in an era in which caselaw reporting is no longer limited by printing costs, the initial motivation for the distinction has begun to evaporate” is too broad, because it’s too reductionist to the economic and mechanical aspects. Indeed, your economic theory might be entirely irrelevant (at least in California): It’s at least as likely that the reasons for the slowdown of the practice have to do with the justice issues mentioned in Barnett’s 1993 (i.e., pre-Internet) article, to which I linked earlier.

  11. Steve Schultze says:

    AJ, I think you’re still missing the point. Publication or non-publication historically emerged as a practice as a result of the limitations of the print medium. I’m not an expert on the topic, but that’s clearly what the various cites I’ve posted claim. You haven’t provided any evidence to the contrary.

    It is in this context that the federal courts issued guidelines for what should be published. Your quote of the California standards doesn’t describe the motivations for permitting non-certification at all… so it still doesn’t support your claim that physical publication limitations weren’t the genesis of the rules. What’s more, the Peter Martin article I posted indicates that many states are deciding that once opinions are cheap and easy to access, the distinction no longer makes sense.

    My broader point is that the practice of unpublished opinions emerged as a way of dealing with practical limitations on the distribution and knowability of the law. This was consistent with common law principles of justice. However, over time, judges and attorneys lost sight of this reasoning and began to assume that the courts had some basic authority to do such things. The articles I cite argue that this is not consistent with basic principles of common law justice, and creates perverse incentives for judges. That is the heart of the “rediculousness” that I first described. The only justifiable reason for the practice has largely evaporated, but it has persisted.

    Your discussion of performativity only reinforces this conclusion. Unpublication or depublication is an effort by the court to avoid uttering an opinion that it nevertheless utters. This is bad for justice. Simply saying, “the court sometimes doesn’t want to perform its opinions” is not a justification… it’s a description of the problem.

    You say, “your economic theory might be entirely irrelevant (at least in California): It’s at least as likely that the reasons for the slowdown of the practice have to do with the justice issues.” Unless you can give some explanation for how California initially justified the practice of unpublication other than physical limitations on reporters, I’m going to assume that this was the case there just as in the federal case and the other states mentioned in my cites. If that’s true, then the economic theory is entirely relevant, because it is the only theory that justified the tradeoff in justice of allowing courts to not say what they say.

    Depublication only barely makes sense in the context of a perverted unpublication regime that has lost sight of its original reasons for existence. As the rug is being pulled out from under unpublication, I would hope that depublication likewise dies.

  12. Steve Schultze says:

    Incidentally, the 1984 article by Justice Grodin notes:

    Certainly the court ought not grant a hearing simply because the court of appeal has written an opinion with which the supreme court disagrees, nor should such disagreement be prerequisite to a grant. Rather, the grant option is reserved for those “important” cases appearing to require supreme court guidance. Given the considerable limitations upon the court’s time and resources described above, and taking into account the burden of automatic appeals in death penalty cases and state bar disciplinary matters, the option to grant is not one thatought to be, or indeed can be, exercised lightly.

    This leads him to the conclusion that “depublication” is sometimes the most appropriate approach. The entire justification is built on the principle that court workload limitations require it. Workload is one of the factors that explicitly may not be considered in the California rules for issuing unpublished opinions that you quoted. Why the standards for depublication should be any different from unpublication is unclear, given that the effect is the same.

    In any case, I’m not sure why the court can’t do something like grant and issue a brief per curiam upholding the decision but not the reasoning.

  13. A.J. Sutter says:

    Some small points:

    1. “Simply saying, “the court sometimes doesn’t want to perform its opinions” is not a justification” — this isn’t quite what I said, and can be misinterpreted easily (because of confusion between performance and enforcement, e.g.). Performativity is like “I now pronounce you man and wife”: when uttered by an authorized person, the utterance gives legal effect to the words. When the upper court orders depublication, it doesn’t want the lower court’s opinion to have legal effect: that’s the simple way to put it.

    2. “Unpublication or depublication is an effort by the court to avoid uttering an opinion that it nevertheless utters.” (I assume by “unpublication” you mean, in the California context, a lower court’s decision not to certify a decision for publication.) This is somewhat inaccurate on both counts. In the “unpublication” situation, the court has uttered an opinion as to the parties but not as to the body of precedent, because the opinion has never been certified for publication. So the two utterences you refer to aren’t equivalent. In the depublication situation, the lower court’s utterance has already been made, as I mentioned earlier. The issue is not to avoid making the utterance but to avoid the legal effect of the utterance.

    3. “The entire justification is built on the principle that court workload limitations require it.” Depublication isn’t required in California, ever. It might be expedient in some cases.

    4. “”Publication or non-publication historically emerged as a practice as a result of the limitations of the print medium.” This may be historically true. However, it isn’t any longer a sufficient basis for deciding whether or not to certify a case for publication in California. Even though electronic publication may reduce the costs, an appellate court might feel that a decision that fails to meet any of the criteria in 8.1105 should not be able to be relied on by future litigants. See also next comment.

    5. “The economic theory is entirely relevant, because it is the only theory that justified the tradeoff in justice of allowing courts to not say what they say.” (A) As to non-certification: I didn’t disagree with you that economic might have been one justification for non-certification. I don’t necessarily agree, though, that saving printing costs is the only valid justification a court might have to limit the precedential value of its decision. Your argument OTOH hinges on this premise. (B) As to depublication: Your comment isn’t quite pertinent, since two different courts are involved, only the lower of which said anything. This is a higher court not allowing a lower court to say (to future litigants) what the lower court said (to the litigants in the instant case).

    6. “Depublication only barely makes sense in the context of a perverted unpublication regime that has lost sight of its original reasons for existence.” Again, this is just your assertion (unsupported by the articles you linked to, neither of which mentions California depublication practice), and blurs the very real distinction between depublication and non-certification to publish.

    (A) As to non-certification: Your argument assumes that the obsolescence of the main historical reason for adopting a practice is the loss of the main reason for maintaining the practice, regardless of whether other benefits of it may have been recognized subsequently. Since there can be such subsequently-developed reasons for maintaining a practice, this type of argument is fallacious. I’ve proposed performativity considerations as a possible explanation for why California maintains this system, independently of the historical reasons for adopting it (though I’m only assuming arguendo that this rationale wasn’t involved historically). I’ve also suggested that low cost of electronic publication isn’t necessarily enough to trump these considerations. You might think the costs are sufficient reason. Or you might invoke some additional principle — such as information wants to be free, or “democracy requires that all appellate court decisions be available to be relied on by all litigants,” or some sort of passionate but specious First Amendment argument (see discussion in Cleveland), or some other demonstration that maintaining the practice does more harm than good — to justify abandoning current practice. But “evaporation” of the historical reason for adopting the practice, even if true, isn’t a sufficient reason to abandon the practice today, in light of the current rules.

    (B) As to depublication: As I’ve explained earlier, depublication doesn’t have any logical connection to printing costs; it incurs costs, instead of saving them — even if the opinion had been published electronically. It also doesn’t have any logical connection to “unpublication”: even if lower courts never had the option to decline certification of an opinion, there could be a justification for the Supreme Court’s depublication practice, resting on performativity considerations (and/or workload ones as well). Whether maintaining the practice is necessarily just, and whether the per curiam procedure you mention, or some other, might be preferable from a justice viewpoint, is a separate knot of issues — and is probably a better foundation for arguing against the practice than is dragging in historical arguments of doubtful relevance.

  14. Steve Schultze says:

    AJ, I’m afraid that you continue to miss the forest for the trees. It is quite simple. There has been stated only one condition that has been justified as sufficient for unpublication, and that is physical limitations on reporting cases. As such, it was a necessary and sufficient condition.

    You provide the list of California criteria that are necessary conditions for publication, but they are not sufficient conditions for unpublication. They simply don’t help substantially with the current debate, for two reasons: 1) we don’t know if there are other limitations on unpublication (say, er, Constitutional or common law) and 2) all that they are stating is the law, not the justifications thereof.

    You also engage in an unnecessary further tutorial on performativity, while still avoiding any explanation of how this concern provides a justification for unpublication. “Judges don’t want to perform certain judicial opinions.” Ok. Why is this acceptable?

    There are undeniable threats to justice that accompany the practice of unpublished opinions. A decision to adopt or maintain this practice must weigh such threats against countervailing concerns, of which there has been exactly one articulated — physical limitations.

    Depublication (by the highest court in a jurisdiction) relies on a regime that tolerates unpublished opinions. You’re right that it doesn’t have any logical connection to printing costs — which is the primary reason why it is so ridiculous! The sole justification in the article you cited (which, incidentally, maintains that depublication is “questionable” for a variety of reasons) is workload. One would have to explain why workload justifications are sufficient for depublication when they are explicitly prohibited in publication consideration by California. Being as charitable as possible, we could say that the supreme court is different because it, by design, is structured to consider a far lower volume of cases. The alternative would be doing nothing at all for cases in which the supreme court agrees in judgement but disagrees in reasoning. The question, then, is whether doing nothing in those cases is better than a process that is, in the words of Justice Grodin, “uncomfortable.” He was perhaps the most charitable person to the issue, given his position as one of the few people who could take advantage of the practice. Even he admitted that such concerns should motivate us to strongly consider alternatives. The criticisms that others have made of unpublication largely apply to depublication as well, given that the effect is the same. These include a host of Constitutional considerations, including fundamental due process concerns (Cleveland). Incidentally, you are welcome to step through a critique of Cleveland rather than simple hand-waiving about speciousness.

    The historical justifications for this practice are as important as the historical justifications for other judicial acts — which is to say, very important indeed! They are not the only route to justifying a practice, but when they evaporate it would be a mistake to simply continue a practice because “that’s the way we do it.” After all, this is how stare decisis works. We perpetuate authoritative reasoning based on its fit to contemporary facts. Somewhat ironically, unpublication and depublication seeks to remove historical reasoning (correct or not) altogether.

  15. A.J. Sutter says:

    My posts ##10 and 13 already contain everything I’d say in response to #14, and sometimes more than once. I think it’s time to give Gerard a break. Thanks for staying civil, which is rare enough in these threads these days.