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Published online by Cambridge University Press: 17 February 2009
I am honored to participate in this celebration of my friend and colleague Professor Ernst-JoachimMestmäcker. Although the topic of my contribution may jar this Law Review by being purely American, and what's more by having nothing to do with business organizations, the American part, at least, may be justified by Professor Mestmäcker's expertise in American law and by all he has done to promote legal and academic cross-fertilization between the European and American gardens. I myself have benefited enormously from the welcome and encouragement that Professor Mestmäcker has provided to me, as to so many other American scholars, at the Max Planck Institute in Hamburg. I salute him, and I trust that he will continue his own scholarly contributions for many years to come.
1 Judicial Business of the United States Courts 2000, Table S-3.
2 Judicial Council of California, Administrative Office of the Courts, Court Statistics Report 2000, Court of Appeal, Table 9.
3 223 F.3d 898 (8th Cir.), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en bane).
4 The case involved the filing deadline for a refund of federal income taxes. The Eighth Circuit followed an unpublished case accepting the position of the Internal Revenue Service. Meanwhile the Second Circuit Court of Appeals came out the other way. Weisbart v. United States Dep't of Treasury, 2000 WL 1041231 (2d Cir. July 28, 2000). With a petition for rehearing en banc pending in Anastasoff, the Internal Revenue Service acceded to the Second Circuit's position, thus conceding Ms. Anastasoffs claim and mooting her case – and leaving the constitutionality of the rule banning citation of unpublished opinions an “open question” in the Eighth Circuit. 235 F.3d 1054.
5 E.g., Braun, Jerome I., “Eighth Circuit decision intensifies debate over publication and citation of appellate opinions”, Judicature, Sept.-Oct. 2000, p. 90Google Scholar; Deborah Jones, Merritt and Brudney, James J., “Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals”, 54 Vand. L. Rev. (2001) 71Google Scholar; Brian, Endter, “Death, Taxes and Unpublished Opinions”, 33 Ariz. State L.J. (2001) 613Google Scholar; Carpenter, Charles E. Jr., “The No-Citation Rule for Unpublished Opinions”, 50 South Carolina L.Rev. (1998) 235Google Scholar; Dragich, Martha J., “Will the Federal Courts of Appeals Perish If They Publish?”, 44 Am. U.L.Rev. (1995) 757Google Scholar; Arnold, Richard S., “Unpublished Opinions: A Comment”, 1 J. App. Prac. & Proc. (1999) 219Google Scholar; Case Note, 114Harv. L. Rev. (2001) 940Google Scholar; Shuldberg, K., “Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeal”, 85 Calif. L. Rev. (1997) 541CrossRefGoogle Scholar; Barnett, Stephen R., “Silent Stare Decisis”, LA. Daily J., April 13, 2000, p. 4Google Scholar. See also, e.g., Fallon, Richard H. Jr., “Stare Decisis and the Constitution: An Essay on Constitutional Methodology”, 76 N.Y.U.L.Rev. (2001) 570, 596 n. 115.Google Scholar
6 E.g., Boggs, Danny J. and Brooks, Brian P., “Unpublished Opinions & the Nature of Precedent”, 4 Green Bag 2d 17 (2000)Google Scholar; Alex, Kozinski and Stephen, Reinhardt, “Please Don't Cite This!”, California Lawyer, June 2000, p. 44Google Scholar; Martin, Boyce F. Jr., “In Defense of Unpublished Opinions”, 60 Ohio St.L.J. (1999) 177.Google Scholar
7 Schmier v. Supreme Court of California, 78 Cal. App. 4th 703 (2000).
8 Appellate Process Task Force, A White Paper on Unpublished Opinions of the Court of Appeal, March 2001 (recommending that unpublished opinions be posted on the judicial Web site “for a reasonable period of time (e.g., 60 days)”, but that the rule prohibiting citation of unpublished opinions be retained without change).
9 E.g., William, Glaberson, “Legal Shortcuts Run Into Some Dead Ends”, N.Y.Times, Oct. 8, 2000, p.4.Google Scholar
10 Anastasoff, supra n. 3, 233 F.3d at 903.
11 Id. (“judges and lawyers of the day recognized the authority of unpublished decisions even when they were established only by memory or by a lawyer's unpublished memorandum”).
12 California Rules of Court, Rule 976 (b).
13 See n. 2 supra.
14 Judicial Business of the United States Courts 2000, Table S-3.
15 See n. 1 supra.
16 California Rules of Court, Rule 977 (a). As in every other jurisdiction, this is subject to exceptions for citations that refer to the case as a fact, not a precedent – such as “when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel”. See ibid., Rule 977 (b). For a case rebuffing an attorney's attempt to cite an unpublished case to show the “fact” that her opponent's position lacked legal precedent, see Sorchini v. City of Covina, 9th Circuit, May 4, 2001, 2001 DJDAR 4343.
17 See Anastasoff, supra n. 3, 223 F.3d at 904. A committee has recently recommended that the California court of appeal do this. See note 8 supra.
18 See “‘Pinocchio’ Grudge Match Continues”, L.A.Daily J., April 13, 2001Google Scholar (reporting that advocates of movie director Francis Ford Coppola, whose $80 million jury verdict against Warner Bros, in a dispute over the movie “Pinocchio” was set aside by the court of appeal in an unpublished opinion, “are trying to have the court officially publish its March 20 decision. Official publication would make the decision easily available over the Internet, and therefore more open to criticism. Copies of the unpublished opinion can be obtained only by going to the Court or by knowing somebody who has a copy”).
19 Anastasoff, supra n. 3, 223 F.3d at 904.
20 Ibid. As an example, consider In re Kamiyama, California Court of Appeal, 4th App. Dist., Division 3, May 29, 1998. Petitioner Michiko Kamiyama was convicted by a jury of misdemeanor child abuse for leaving her eight-year-old daughter home alone one evening, at a private residence in a gated community, while petitioner, who had been unable to find a baby-sitter, went out to audition for a job. The court, in an unpublished opinion, threw out the conviction, finding the evidence insufficient as a matter of law. A dissenter accused the majority of substituting its judgment for the jury's and departing from established precedent: “[t]he temptation to decide a case based on our own agendas or public opinion can be intoxicating…” The dissenter also criticized the majority for not publishing the opinions in the case. Under California's no-citation rule, a mother (or father) accused of child abuse on similar facts may not tell the court about the Kamiyama decision.
21 See, e.g., Editorial, “Secret Law”, New Jersey Lawyer, Sept. 25, 2000; Merritt & Brudney, “Stalking Secret Law….”, supra n. 5.
22 Unpublished opinions may be reviewed on appeal; but an opinion's unpublished status is considered a substantial handicap in seeking supreme court review.
23 See Greenberg, Stanley I., “Prosecutor's Pal”, L.A. Daily J., Aug. 30, 1994, p. 4Google Scholar (complaining that recent decision by the Ninth Circuit affirming convictions (of writers' clients) “not only mischaracterized, but completely whitewashed, substantial misconduct and bias” by the trial judge, and that “it was done in an unpublished decision that hides the judge's conduct from the public, preventing the legal community from subjecting the decision to a healthy scrutiny I don't believe the opinion could withstand”).
24 “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”. 121 S.Ct. 525, 532 (2000)Google Scholar. Arnold, supra n. 5,1 J.App. Prac. & Process, at 225.
26 “The litigant who garners ideas and arguments from unpublished opinions but does not cite to them… need never reveal the paper trail. This is a weakness in the use of unpublished opinions that no-citation rules will not eradicate.” Martin, supra n. 6, 60 Ohio St.L.J., at 197 (concluding, however, that this problem “is [not] sufficient to warrant the elimination of unpublished opinions”).
27 Anastasoff, 223 F.3d at 899.
28 Ibid., at 903.
29 See Case Note, supra n. 5, 114 Harv. L. Rev., at 943-944; Fallon, supra n. 5, 76 N.Y.U.L.Rev., at 596 n. 115.
30 As Judge Arnold put it in Anastasoff, courts are asserting that they have the power “to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not”. Anastasoff, 233 F.3d at 904.
31 See Katsch, Salem M. and Chachkes, Alex V., “Examining the Constitutionality of No-Citation Rules”, N.Y.L.J., April 2, 2001, p. 1.Google Scholar
32 Schmier v. Supreme Court of California, supra n. 7,78 Cal.App. 4th 703. Actually, the rule provides only that an opinion may not be published “unless” it meets one of the listed criteria. California Rule of Court, Rule 976 (b). The court appears to have strengthened the rule in order to defend it.
33 See California Court Statistics Report 2000, Court of Appeal, Table 9.
34 See, e.g., “3d Circuit Gives Lessons on Attorneys' Fees”, June 8, 2001, <http://www.law.com> (reporting two opinions of Third Circuit Court of Appeals that are “chock-full of important holdings on a variety of thorny issues that often arise during fee disputes”; “[nonetheless, both decisions are labeled: ‘Unreported – Not Precedential’”).
35 See Boggs and Brooks, supra n. 6,4 Green Bag 2d at 21.
36 One might suggest that it does not necessarily increase that time at all, but only makes the “top ten” cases more relevant than they would have been if drawn from a smaller data base. Unpublished opinions, however, even if not catalogued separately by the computer for search purposes (as, in the future, they should be), surely would be treated separately by researchers – as “second class” precedents that might add to, but would not displace, published opinions that otherwise were worth the researcher's consideration.
37 See n. 36 supra.
38 See n. 8 supra.
39 Boggs and Brooks, supra n. 6, at 22.
40 Judge Boggs stresses the claims of efficiency: “The practical need to dispose of a certain percentage of cases on an expedited basis, as a simple docket management matter, flows from the stark reality of a relatively small federal appellate bench and an ever-increasing caseload. There is no strictly legal – let alone philosophical – justification for the practice.” Ibid., at 19.
41 Fourth Circuit Court of Appeals, Rule 36(c); Sixth Circuit Court of Appeals, Rule 28 (g).
42 Fifth Circuit, Rule 47.5.4; Eighth Circuit, Rule 28(a)(i); Tenth Circuit, Rule 36.3; Eleventh Circuit, Rule 36-2.
43 Third Circuit, IOP 5.8.
44 As of 1994, only two circuits allowed citation of unpublished opinions. See Barnett, supra n. 5, L.A. Daily J., April 13, 2000. The Ninth Circuit, under pressure to relax its no-citation rule, last year adopted a compromise experiment (for two and a half years) that allows citation of unpublished opinions, but only in petitions for rehearing and requests for publication – not in ordinary appeals – and only for the purpose of showing a conflict between opinions or orders of the court. Ninth Circuit Court of Appeals, Rule 36-3.
45 About 3,000 in the Fifth and Eleventh Circuits, about 2,000 in the Fourth.
46 See n. 8 supra.