As indicated earlier in relation to the Illinois Appellate Courts, cases from one district are only binding in that district. Similarly, cases from the various Federal Circuit Courts of Appeal are only binding within those circuits, and on the district courts of those circuits.
Be aware of the hierarchy of courts and what opinions may be binding on those courts, compared to opinions that are persuasive. Published and Unpublished Opinions. Most courts have rules about citation of unpublished opinions.
In Illinois, it is Supreme Court Rule 23 which states that the Court including the Appellate Court may designate a disposition as an order, in which case it will not appear in the official or unofficial reports, and cannot be cited as precedent. Generally, Lexis and Westlaw will pick up these unpublished opinions. However, this is a recent trend with these research services. Though access to services like Westlaw or Lexis Nexis may be expensive, under the traditional model, there was a least some guarantee that judicial opinions—the primary means through which courts explain their decision-making—would be available for public inspection somewhere.
However, since the s, due to a rapidly growing caseload, it has become increasingly common for courts to diverge from the traditional model of opinion writing and publishing. Though cases resolved through unpublished opinions make up a large portion of the work of the federal judiciary, the reasoning judges used to adjudicate those cases remains largely inaccessible. Many unpublished opinions are available in the Federal Appendix—a reporter dedicated to unpublished, non-precedential opinions—or on Westlaw or Lexis.
But because there is no officially-recognized, systematic way of compiling and accessing these opinions, it is likely that some of these unpublished opinions are excluded from those services. Simply speaking, the majority of unpublished opinions will never be scrutinized by the public. Eventually the panel was reversed , , at the Supreme Court. In the Ricci case, it was only because of luck—Judge Cabranes just happened to have stumbled upon the case—and not because of the appropriateness of the process, that the public became aware of the importance of the case.
Both judges and scholars have written positively and negatively about the role of unpublished opinions in our judicial system. At least one critic has argued that, as a matter of due process, unpublished opinions are unconstitutional. During her confirmation hearings, then-Judge Sotomayor had to respond to accusations that the panel had not published the opinion in order to hide it—to prevent it from being scrutinized or appealed to the Supreme Court. Then-Judge Sotomayor pushed back , arguing that there was no such intent.
The option to not publish the opinion prevented full accountability. Especially considering concerns that the federal judiciary is increasingly and damagingly politicized, it is extremely important that the public can scrutinize judicial decision making, something not possible if judicial opinions are inaccessible. In a system where the vast majority of adjudications are inaccessible and in which judges may choose which, if any, opinions are available for scrutiny, judicial accountability is nothing more than a myth.
In the case of then-Judge Sotomayor, she was questioned about her motivations in the Ricci case because the lack of a reasoned opinion reflected the lack of a legitimating process. The policy rationales underlying the common law right of access highlight the problems with unpublished opinions. Unpublished opinions insulate judges from public scrutiny for their actions in an official capacity. I believe it may be time to reconsider rules of civil procedure—whether the FRCP, local rules, or chamber rules—in light of the prevalence of unpublished opinions.
In , the Supreme Court altered Rule 32 of the Federal Rules of Appellate Procedure to prevent circuit courts from prohibiting citations to unpublished opinions. Though that change mitigated some earlier concerns regarding unpublished opinions, it did not address the concern discussed in this post. I think it is time once again to consider the role unpublished opinions have in our justice system—with a focus on whether unpublished opinions undermine the rationale embodied in the common law right of access to judicial records.
Currently, the FRCP do not include any provisions regarding accessibility to unpublished opinions. The Seventh and Eighth Circuits, for example, have a default rule that opinions not be published, while the First Circuit takes the opposite approach. Other circuits use various multifactor balancing tests to decide whether to publish.
There is likely no perfect solution to the issues created by unpublished opinions. But reassessing the rules of procedure to see if there are any means of mitigating the negative impacts unpublished opinions have on the right of access may be a good place to start. Advocating for rules changes can be an iterative process in which the efficiency concerns that first motivated the use of unpublished opinions are addressed alongside the need for accountability and transparency. If you continue with this browser, you may see unexpected results.
University of Nevada, Las Vegas. Unpublished Opinion Search this Guide Search. Case Law Research. Unpublished Opinion Published vs.
Published vs. Unpublished In previous pages, we learned how cases are organized into various reporters. All Supreme Court cases both federal and state are published Some intermediate appellate court cases both federal and state are published.
Some are not.
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