COURTS WRITE DECISIONS THAT ELUDE LONG VIEW

Original Story: nytimes.com

WASHINGTON — In April, a federal appeals court issued a 40-page decision on a serious subject, ruling that a trial judge had unlawfully increased a prison sentence out of vindictiveness.

The decision was a good example of judicial craft, closely reasoned and carefully written. The judges voted 2 to 1, suggesting that the legal question the decision resolved was a hard one.

But the decision was “unpublished,” as are 88 percent of decisions issued by federal appeals courts. That means it set no precedent. It was a ticket good for only one ride.

The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made sure that no one missed this point. Its first word, “unpublished,” was underscored, and it bore a standard legend: “Unpublished opinions are not binding precedent in this circuit.”

Last month, the Supreme Court refused to review the ruling, over the dissenting votes of Justices Clarence Thomas and Antonin Scalia. While explaining why the court should have taken the case, Justice Thomas raised important questions about the vast subterranean body of decisions that do nothing more than resolve one dispute at a time.

“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”

He accused the Fourth Circuit of violating its own standards by refusing to publish the decision. He also suggested that the appeals court had acted strategically to avoid review of its ruling.

Supreme Court justices have long been wary of unpublished decisions for that reason. “Nonpublication must not be a convenient means to prevent review,” Justice Harry A. Blackmun wrote in a 1991 dissent joined by Justices Sandra Day O’Connor and David H. Souter.

In a 2006 interview, Justice John Paul Stevens said he was more likely to vote to grant review of such rulings “on the theory that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify.”

These days, technology has turned the term “unpublished” into a misnomer. With the availability of legal databases and websites for courts, almost every decision issued by an appeals court is instantly available. And, because of a 2006 amendment to the federal rules of appellate procedure, lawyers are free to cite unpublished opinions issued after Jan. 1, 2007.

But without the force of precedent to require courts to rule similarly the next time around, these decisions create a sort of lawlessness, Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit wrote in 2000. “We may have decided this question the opposite way yesterday,” he wrote, “but this does not bind us today.”

Judges say that unpublished decisions are a sensible reaction to a crush of work.

“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuit explained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”

Erica J. Hashimoto, a law professor at the University of Georgia and a lawyer for the prisoner in the recent case, Plumley v. Austin, No. 14-271, said “requiring courts to author binding precedent in every case is simply unworkable.”

The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.

“Because published opinions create binding precedent for all other cases considered by that court, those opinions, unless crafted with the utmost care and precision, can have significant unintended consequences for all sorts of other cases,” Professor Hashimoto said. “Anticipating those consequences requires an incredible investment of time.”

Still, it is hardly clear that judges are making the right choices about which opinions to publish, Scott E. Gant wrote in 2006 in the Boston College Law Review.

“The premise that judges can and should make this determination at the moment a ruling is made, and without the benefit of input from others, is seriously flawed,” he wrote.

In a 1977 speech, Justice Stevens said the approach rested on “a false premise,” specifically “that an author is a reliable judge of the quality and importance of his own work product.”

David R. Cleveland, a law professor at Valparaiso University in Indiana who has written extensively on unpublished opinions, said that Justice Thomas’s recent criticism was characteristic of the Supreme Court’s fitful attention to the issue.

“Individual justices have expressed dissatisfaction with the system and individual instances of it,” Professor Cleveland said, “and they should be commended for spotting the problem and speaking out against its harm to appellate justice.”

In a 2009 article in the Marquette Law Review, he calculated that litigants had asked the Supreme Court to consider the “constitutionality or propriety” of designating an opinion as unpublished in at least 36 petitions seeking review. But the court has never ruled on the issue.

“Rather than occasionally expressing disapproval of an individual symptom of the problem,” Professor Cleveland said, “the court should consider addressing the underlying illness.”