“Nonpublication Must Not be a Convenient Means to Prevent Review.”

The inspiration for Tuesday's post came from this article in the New York Times about the plethora of unpublished opinions issued by the federal courts. According to the article, 88% of opinions issued by the federal appeals courts are unpublished. Some have suggested courts may intentionally choose not to publish opinions that otherwise meet the standards for publication for the purpose of avoiding Supreme Court review.

The article specifically addresses an opinion issued last year by the Fourth Circuit Court of Appeals, described as "judicially craft[ed], closely reasoned, and carefully written." The Fourth Circuit's Local Rule 36(a) calls for publication of opinions that meet at least one of the following criteria:
 

1. establishes, alters, modifies, clarifies, or explains a rule of law within this Circuit; or

2. involves a legal issue of continuing public interest; or

3. criticizes existing law; or

4. contains a historical review of a legal rule that is not duplicative; or

5. resolves a conflict between panels of the Court, or creates a conflict with...another circuit     

 

The opinion at issue met several of the criteria, yet wasn't published. The Supreme Court declined to grant cert, presumably because the opinion was unpublished and, therefore, not technically binding precedent in the Fourth Circuit.

 

This is an interesting issue but one, I sense, that is limited to only a few jurisdictions. And the judges interviewed for the article, including Judge Kozinski of the Ninth Circuit, make good points about why certain opinions aren't published.

 

What do you think? Should the courts of appeals publish opinions in cases they know or expect will be the subject of cert petitions?  Do courts act in bad faith in failing to do so?

 

Happy Friday!