Wednesday, February 25, 2015

"The Perils of Nonprecedential Opinions"

Image result for perils of paulineToday's DJ features a piece by Valparaiso's Professor David Cleveland, an outspoken critic of unpublished appellate decisions.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  • This practice [i.e., issuing unpublished, nonprecedential opinions] is harmful to appellate justice.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  • Second, treating some decisions as nonprecedential creates the potential for conflicting published and unpublished opinions. Unpublished opinions allow a court to decide cases differently, even antithetically, without needing to acknowledge or explain the discrepancy. 
  • Third, issuing some decisions as nonprecedential increases the likelihood of intra-circuit conflict. 
  • Fourth, declaring some opinions nonprecedential hides inter-circuit splits and allows some issues to evade Supreme Court review.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. 
Image result for perils of pauline
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 He concludes: "The practice of issuing nonprecedential opinions should end it because it is contrary to the common law system and harmful to appellate justice."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."