More Thoughts on Unpublished Opinions

Empirical study of the impact of unpublished opinions on socially disadvantaged people.

As readers of this blog now know, I am opposed to the idea that courts can, by not publishing an opinion, render it of no weight as precedent in future cases. In my view, one of the substantial limits on federal judicial power is the fact that when judges issue an opinion, future judges are bound by that opinion as a matter of precedent even if they sympathize less with the parties in that future case.  This is a core feature of the rule of law.

Unpublished opinions that have no weight as precedent are, in my opinion, inconsistent with the rule of law. The Federal Rules of Appellate Procedure need to be amended to require federal court of appeals judges to give the same weight as precedent to unpublished opinions as they give to published opinions.

Abbe Gluck, who is  the Alfred M. Rankin Professor of Law and the founding Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School, has done a very impressive empirical study of unpublished options.  Her study found that, in some circumstances, they appear to burden heavily socially disadvantaged groups of people. A link to her study appears below.

Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals

https://www.cornelllawreview.org/2022/04/16/is-unpublished-unequal-an-empirical-examination-of-the-87-nonpublication-rate-in-federal-appeals/

Comments

[LoganMankins]

Calabresi really going to gloss over the fact that his unedited post from last night was saved lol

https://app.box.com/s/lhsqao5isovdi6n7m4wrc8fbsmbi7f1r

[David Nieporent]

Look, that was a deranged rant, and it reflects badly on him both that he thought it and that he posted it. But he has since withdrawn it, which is the most he can do. I don't know what "Ha, ha, we still have a copy of it" is supposed to accomplish.

[Jacob Grimes]

I'd say the judge was a bit aggressive in his letter, based on the excerpts. It's a perfectly normal reaction to respond in kind, even if it's not ideal.

[huskerdru]

You may be correct, but:

It is impossible to conclude that based on a few excerpts; and,
Responding truly in kind would involve an email reply to the judge, not a public series of abusive personal attacks.

[Dilan Esper]

Wait a second, so one of Prof. Calabresi's posts criticizing unpublished opinions has been... depublished?

[Vryedni]

That observation was made multiple times in the other thread. Keep up.

[grb]

David Nieporent : “…. which is the most he can do ….”

Plus, there’s this: To my non-lawyer eye, this is a reasoned Calabresi post making a rational point without recourse to strutting craziness. Per my southern roots, I can only say “bless his heart” and hope a corner was turned.

It must be exhausting to stay at peak-hysteria 24/7, even if that’s required to get back into MAGA good graces. Maybe Calabresi has finally decided it’s not worth the effort.

[Vryedni]

I'll give him the benefit of the doubt until the next brain hemorrhage.

[loki13]

I’ve been fairly busy …. so I missed this.

And I just looked at that.

I mean, wow. So, I agree that we should be thankful that Calabresi had the good sense to, um, unpublish it, but even so.

I’m not going to hold that over his head (given the many many many other posts he has had) but my goodness. That was something.

ETA- I now have looked at the new post, and I should say that I appreciate that Calabresi both wrote that he regretted posting it, and that he was retracting it. I won't make him wear a hairshirt over that. We've all done things we regret.

[David Nieporent]

We’ve all done things we regret.

There's a reason, when I'm really pissed off at opposing counsel's email and compose a reply, that I take his/her email address out of the "to" field before I start. That way I can blow off all the steam I want without even having the ability to hit "send." Then I can reflect, delete it, and write the professional version.

[loki13]

That is great practice.

I almost always follow that. Anything you can write when you're angry, you can write much better when you're not.

And there is nothing* that requires you to immediately respond.

*Look, I'm sure someone will come up with something that is time sensitive. A text that says, "Your house is burning down," should probably be attended to.

But almost nothing actually requires immediate response.

[David Nieporent]

Yes. And a few times over the years I've even re-read the thing I'm pseudo-responding to and realize that I completely misread it, and that in fact my anger was utterly unjustified/misplaced.

[Purple Martin]

Well, perhaps it provides some evidence that Calabresi’s contributions over the last several months are not caused by advancing dementia or a permanently debilitating stroke, but the temporary results of alcoholic drunken ranting or perhaps LSD hallucinations.

That follows the reasoning of a probably apocryphal Churchill insult:
“Yes, madam, I am drunk. And you are ugly.
But in the morning I will be sober and you will still be ugly.”

Good news, I suppose

[Bored Lawyer]

one of the substantial limits on federal judicial power is the fact that when judges issue an opinion, future judges are bound by that opinion as a matter of precedent even if they sympathize less with the parties in that future case

Nope. District judges are not bound by opinions of other district judges, whether in their district or not. Although they do try not to disagree with one another. District judges ARE bound by precedential opinions in their own Circuit, and, of course, by SCOTUS. They are not bound by opinions from other Circuits, but there they have to really disagree strongly to disagree, and avoid it if possible.

[huskerdru]

Though I think Calabresi has gone beyond the pale in his posts on this topic, in fairness, the quotation above regards courts of appeals, not district courts.

[QuantumBoxCat]

"Abbe Gluck, who is the Alfred M. Rankin Professor of Law and the founding Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School, has done a very impressive empirical study of unpublished options."

Sucks to be Rachel Brown, Jade Ford, Sahrula Kubie, Katrin Marquez, or Bennett Ostdiek.

[Rev. Arthur L. Kirkland]

Abbe Gluck must be the clingiest clinger of that bunch. Over-under on Federalist Society appearances: 10.

[Noscitur a sociis]

Prof. Gluck has been, among other things:

-A law clerk for Ruth Bader Ginsburg
-An executive committee member of the New York ACS chapter
-An attorney and advisor to New Jersey Governor Jon Corzine
-An attorney for the Biden transition time and special counsel for the Biden administration's COVID-19 response team.

Other than that, great comment!

[huskerdru]

You win all today’s points, well played

[Rev. Arthur L. Kirkland]

This made me check.

She has a half-dozen (reported) Federalist Society presentations. Perhaps Prof. Calabresi, in his current condition, merely remembered enjoying fist-sized shrimp and top-shelf liquor with her at Federalist Society events and just assumed she was a clinger in good standing without checking her record on bigotry, superstition, backwardness, and election denialism.

This would not be the first time Prof. Calabresi was recently . . . confused. Maybe he'll regret the error, retract the shout-out, and provide credit to a more conservative co-author.

[Noscitur a sociis]

Perhaps he decided to cite the author who is a law professor rather than the authors who were her law students?

[Bored Lawyer]

RAK is like one of Dr. Pavlov's dogs. He can't help himself from posting some empty-headed rant that he thinks makes him superior.

[The Margrave of Azilia]

There’s an easy way around the problem – instead of issuing opinions but demanding they not be published, judges could simply issue judgments without any accompanying opinion.

After all, a key reason to release an opinion is to inform the profession and the other judges about how a particular court sees a particular issue, and to instruct judges under the court’s supervision (e. g., district courts which are subject to a particular appeals court) what to do. An unpublished opinion doesn’t seem to serve these purposes, since it not only can be ignored, but apparently there’s a duty to ignore it. The court may as well say nothing as release an unpublished opinion.

Hence my modest reform: When a court doesn’t want its decision to be precedential, then instead of publishing an opinion and saying never mind, simply don’t publish an opinion at all. Just an order saying what happens to the parties, but without explaining why.

[SRG2]

Just an order saying what happens to the parties, but without explaining why.

Oh, that is done as well. And it's a bad idea because when a defendant appeals, they will find it more difficult to cite grounds to reject the district court's ruling. My understanding is that as a general rule - or perhaps, heuristic - higher courts assume that a lower court's no-opinion decision was based on proper findings and are hence more likely to defer.

[The Margrave of Azilia]

I would prefer written opinions, all of which are precedential, with the same authority, great or small, as any other precedent from the court in question. (So a district court precedent would be kind of meh, an appeals court precedent would be more significant, and a Supreme Court precedent would be the supremest of all).

[CJColucci]

As I suggested in a comment on the previous post on this subject, this is much ado about nothing much. The vast majority of unpublished opinions, whether taken as binding precedent or not, are pretty much useless to anyone other than the parties to that case. They almost never say anything about the law that hasn't been said before, and authoritatively, in published opinions, and they almost never say enough about the facts of the case to permit an advocate in a later case to argue that the unpublished opinion establishes anything relevant to the advocate's own case than glittering generalities.

[loki13]

Eh... I disagree.

Only because I've just finished a very long response that was filed in federal court that had to use some unpublished opinions. While there are usually published opinions, there are certain topics that ... well, there is a real dearth of authority on.

We've all been there. You don't want to use them if you don't have to, but for some specific issues or fact patterns, unpublished opinions are going to be the only legal authority you will find.