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:
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 The Supreme Court declined to grant cert, presumably because the opinion was unpublished and, therefore, not technically binding precedent in the Fourth Circuit.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?