The Advisory Committee on Appellate Rules of the Judicial Conference has voted in favor of a new rule that would allow the citation of unpublished opinions in Federal Courts. (link found via How Appealing) There is a much better article on this issue over at law.com.
This issue is interesting, if for no other reason, due to the impressive stature of the participants on both sides of the battle. On one side, you have Frank Easterbrook in favor the rule change, and on the other, Alex Kozinski and Richard Posner in opposition, the former in perhaps vehement opposition.
I am surprised to see Easterbrook on the "pro" side of the battle - his point about the fallacy of the increased attorney research times and costs is well taken, but what about his reponse to Kozinski's point that it will greatly decrease judicial efficiency? Easterbrook's response seems to be only that "(barring citation of opinions) implies that judges have something to hide." Isn't that statement/opinion itself facially untrue, as "unpublished" opinions are not "hidden" at all, but are instead published along with the "published" opinions themselves?
In fact, in addressing the issue of attorney efficiency, Easterbrook himself says exactly that : "...because unpublished opinions are generally available on Westlaw, Lexis, and in the Federal Appendix..." I'm sorry, I just don't see the logic in the "something to hide" argument. I agree that judges should be accountable for their decisions, but I fail to see how prohibiting citation prevents that, given both the appellate process and that the opinions are widely available for public scrutiny.
I'm not sure that I see the logic in Professor Stephen Barnett's response to a comment made by Judge Kozinski, either:
"... Kozinski adds in characteristically colorful language, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."Given that unpublished opinions resolve real cases for real litigants, Kozinski's description of them as so much inedible sausage has not sat well, says Stephen Barnett, emeritus professor of law at the University of California, Berkeley's Boalt Hall School of Law. "
Is this anything more than a cheap attack packaged as a soundbite? Kozinski said that unpublished opinions, that is, the written words produced by the judge (or more often law clerks), are often devoid of details and facts, owe to reasons of judicial economy. The opinion in an unpublished case is as fair and as correct as any published opinion - the difference is only that the judge did not spend the time necessary to make it his magnum opus. This isn't offensive to "real" litgants, dead litigants, or even litigants from the dark side of the fourth planet orbiting Alpha Centauri - the "sausage" metaphor refers to the quality of the writing, not to the logic, reason, or the level of justice prescribed.
Posted by jkhat at April 16, 2004 11:41 AM | TrackBack