Today's DJ features a piece by Valparaiso's Professor David Cleveland, an outspoken critic of unpublished appellate decisions. Why?
- This practice [i.e., issuing unpublished, nonprecedential opinions] is harmful to appellate justice. First, deliberately declining to create precedent creates fewer precedents, which means less definite law. With each new decision, the law is broadened, narrowed or simply reaffirmed.
- Second, treating some decisions as nonprecedential creates the potential for conflicting published and unpublished opinions. Unpublished opinions allow a court to decide cases differently, even antithetically, without needing to acknowledge or explain the discrepancy.
- Third, issuing some decisions as nonprecedential increases the likelihood of intra-circuit conflict.
- Fourth, declaring some opinions nonprecedential hides inter-circuit splits and allows some issues to evade Supreme Court review.
- Fifth, creating an opinion that no one can rely on is an invitation to poor reasoning or even strategic, result-based reasoning.
- Finally, the system harms the public perception of the court. It makes no sense to the lay public that a court can make a decision today and not be required to follow, distinguish or overrule it in deciding tomorrow's case. Nor should it.
|HaHaHaHa! You can't cite the decision I'm holding!|
|"The problem is not that there are too many precedents, but that there are too few."|