Richard D. Friedman
rdfrdman at UMICH.EDU
Thu Aug 24 16:24:25 PDT 2000
I clerked in the late 70s in the Second Circuit, which I believe had begun
aggressively using unpublished but articulated orders several years
before. My understanding of the reasoning is closely in accord with Doug's
account. He's absolutely right that there is a tension between Premises 2
and 3. A defender of the practice might say that Premise 2 shouldn't refer
to "no precedential value" but "too little prospect of precedential value
to warrant the extra clutter created by publication." But even in my time,
as indicated by the anecdote I earlier related, there was some rather
conscious use of the unpublished order to avoid the precedential effect of
the order because the court was not confident of the merits of the
principles it was articulating.
Of course, the decision of Westlaw and I guess also Lexis to include all
these orders in their database has rendered the notion of an unpublished
order virtually moot. (The courts can't tell Westlaw and Lexis not to
include these orders, though as I recall some years ago the 10th Circuit, I
think it was, ordered West not to publish a decision of the court that it
had withdrawn, and I think West complied.) I wonder, in fact, to what
extent the courts cooperate with that inclusion by providing the orders in
digital form. And the ready availability of all these orders increases the
difficulty for stage 2 lawyers who in the course of ordinary searches find
cases that support their arguments but which they are gagged from mentioning.
At 12:21 PM 8/24/00 -0500, you wrote:
> John Noble asks about the direction of causation between
>and lack of precedential value.
> My understanding is that the principal reason for making orders
>unpublished in the early 70s was to slow the expansion of F.2d. The
>reasoning went like this:
> Premise 1: There is too much stuff being published, and the
> sheer bulk
>makes it harder to find what's important.
> Premise 2: Many of these opinions say nothing new, and thus are
>inherently of no precedential value.
> So Conclusion 1: Don't publish them.
> Premise 3 (note the tension with Premise 2): Lawyers with
> resources will
>file them and cite them, and that would be unfair to small practitioners.
> So Conclusion 2: Don't let anyone cite them.
> I never heard any indication of a desire to render some decisions not
>precedential for its own sake, or to free the court's hand.
> Caveat: I was only a clerk and may well have known less than I
> thought I
>knew. The unpublished order rules were the subject of much discussion in
>the 7th Circuit my year. All the active judges save one kept their
>chambers in Chicago; several of them were quite open all the clerks, not
>just their own; and the circuit executive was fascinated with the issue and
>injected it into every group discussion. There was some discussion about
>what to publish and what not to publish. So I thought I had a clear sense
>of this debate. But I obviously was not involved in the decision to
>rewrite the rule, and there may have been reasons or motives I didn't know
>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
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