Unpublished Opinions

[Douglas Laycock]

        I was clerking for the 7th Circuit when the unpublished order rules were
adopted (or perhaps just revised and their use sharply expanded) in the
early 70s.  My recollection is that the no citation rule was adopted on the
theory that permitting citation would be unfair to small firms.  It was
thought that big firms and the US Attorney's office would keep a file of
unpublished orders, and index them at least somewhat, and they would be the
only ones able to find anything.  No one said, at least not to their
clerks, that they were afraid to be bound by what they had decided in an
unpublished order.

        If equal access is really the concern, today the courts could put them on
their website and make them searchable and everybody could have equal
access.  We would not all have to pay for more volumes of F.3d every year.
But we probably would feel obliged to extend our research in every case to
cover the "unpublished" orders on the website.

        I understand the concern for the proliferation of opinions, but I also
think a fair number of abuses get buried in unpublished orders.  I have
been urging law review editors without success to do a survey of
unpublished orders followed by cert. grants.  There are a fair number of
those, when there should be none or nearly none.   A case without
precedential value should not present a question of general public
importance.  I think that often these are cases in which the court of
appeals was reaching a result it could not defend in public, or maybe
trying to sneak something past the Supreme Court.   Church of the Lukumi in
1993, and Rufo v. Inmates of the Suffolk County Jail in 1992, are both
cases I happen to remember that were unpublished orders in the Court of
Appeals.

        An extreme example of burial in an unpublished order:  When I was at the
7th Circuit, we got a pro se complaint from a woman in the medical facility
for federal prisoners in Springfield, MO.  She alleged that she was being
used for psychological experiments without her consent, and the experiments
consisted of repeatedly raping her while psychologists observed her
reactions.  Held, in an unpublished order, does not state a claim on which
relief can be granted.  The reality of course was that they didn't believe
a word of it, but they couldn't say that on a motion to dismiss, and they
weren't willing to let it go any further.




Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu