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Professor David Cleveland, an outspoken critic of unpublished appellate decisions.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- This practice [i.e., issuing unpublished, nonprecedential opinions] is harmful to appellate justice.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- Second, treating some decisions as nonprecedential
creates the potential for conflicting published and unpublished opinions.
Unpublished opinions allow a court to decide cases differently, even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- Third, issuing some decisions as nonprecedential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- Fourth, declaring some opinions nonprecedential hides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.
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| HaHaHaHa! You can't cite the decision I'm holding! |
He concludes: "The practice of issuing nonprecedential opinions should end it because it is contrary to the common law system and harmful to appellate justice."
 |
| "The problem is not that there are too many precedents, but that there are too few." |
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