U.S. Court of Appeals for the Eight Circuit holds that nonpre cedential decisions are *unconstitutional*

[Tom Grey]

A court rule states that the court will not grant precedential authority to
certain of that court's rulings of law. This now has been found to violate
Article III by a distinguished judge writing for a panel of that court, and
it's been suggested it might violate due process, equal protection, and the
first amendment, by various posters to this list. Goodness me -- where is
Michael Paulsen, the scourge of stare decisis, now that we need him?

The prohibition against citing unpublished opinions is like the English
courts' long-standing prohibition against citing legislative history. The
idea is something like this: "We deem it legally irrelevant after overall
cost-benefit assessment, so please don't cite it to us. We might be
unconsciously influenced by it in a few cases and we don't want to be. And
even if we aren't influenced, if anyone thinks we are, we will be swamped
with the stuff -- and small firms who can't maintain files of legislative
history (unpublished decisions) will be seen to be unfairly treated."

I recur to the analogy of trial judges' evidentiary rulings during trials.
These are rulings of law, and as such are ideally supposed to form a
seamless web for each judge, and across the whole judiciary. But judges
don't normally want to hear arguments of precedent on them -- as in "your
honor, I recall a case last March where you came out the other way on a
similar question" or "Judge X ruled the opposite way last Tuesday in a slip
and fall case over in Department C." No one thinks the standard practice of
not inviting arguments like this violates due process, equal protection, or
free speech, or is inherently unjudicial.



-- Tom Grey     Stanford Law School    tgrey at law.stanford.edu