A pair of interesting law journal articles have just been published, discussing the system of having unpublished opinions in the United States and its impact on the concept of precedent. In essence, how can you have thousands of unpublished court decisions, which bound the parties, that do not have to be followed by the same court in the future. The author, David Cleveland, discusses a variety of themes – history of law reporting, court policies, the Constitutional impact – while arguing that unpublished opinions belong as part of the body of precedents. It made me wonder why editorial publishing of law reports continues to create an unpublished body of decisions in other countries.
One article was published in the Journal of Appellate Practice and Procedure, from the University of Arkansas at Little Rock. It is not available online from the journal, but a working copy of Overturning the Last Stone: the Final Step in Returning Precedential Status to All Opinions is at the Social Science Research Network. The second article, also by David Cleveland, is Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System and is in the Marquette Law Review.
There are lots of reasons that decisions shouldn’t be unpublished and Cleveland goes through many of them. One that seems obvious is that the system of limiting availability of decisions, whether specifically designated that way or merely by not being selected, made some sense when print was the only medium. Online databases dramatically change the landscape and the issues of access and use of these decisions is no longer as great a challenge.
One facet of law reporting that struck me was how, in Canada and the UK, law reports continue to limit the number of opinions that are published. Unlike the US, where the judges are indicating which opinions are citeable, lawyers and other editors determine which are the key decisions. One publisher in the UK indicated that, of 5,000+ decisions a year, they only select 350 for publication.
It seems a parochial attitude to the dissemination of such vital information. Not only do lawyers not see other, potentially relevant cases, the public is even less likely to be aware that courts issue decisions beyond the scope of the law reports. Additionally, law changes and if decisions are pruned from the tree of precedent, then there may be missed opportunities to see this change or advocate for it.
Online databases are now making these opinions available, which creates other problems for researchers. UK courts are already complaining about lawyers over-citing precedent. But better that problem than unnecessary limitations on the availability of potentially relevant case law.
Cleveland’s articles discuss far more erudite reasons, both for why courts chose not to publish and why they should. I particularly enjoyed Judge Arnold’s points, although I am biased. As well as being a UALR graduate, I used to work on the 29th floor of the TCBY tower in Little Rock. His office was on the same floor, and he never complained about my bagpiping on the patio!