by marlene on Mon Jul 09, 2012 9:10 pm
Reading a bit further in that article I cited about published v. unpublished opinions, it's pretty obvious that unpublished opinions can be a way to conceal judicial misconduct at the appeals level. Here are a few more paragraphs on pp 71-72.
Discussion of the prevalence of unpublished opinions and problems
associated with them have given rise to a general critical clamor. Criticism
of unpublished dispositions is not new. Indeed, until recently, much of the
writing about these rulings, particularly in the legal community, has been
both normative and highly critical,14 although there have been exceptions.15
Critics, some of whom decry the absence in many cases of full treatment,
including oral argument, and a published opinion,16 point to unpublished
dispositions’ alleged detriments; these include their purported use to avoid
having to spell out the rationale of rulings and to avoid public challenge.
Many statements like these about the need for published opinions in more
(if not all) cases or about the excessive number of unpublished dispositions
are blanket indictments. Although some instances of unpublished
dispositions are offered as “horror stories” in anecdotal support of the
author’s claims, the assertions are not based on a close look at a large
volume of unpublished memorandum dispositions.
Among the critics of courts of appeals’ use of unpublished dispositions
are members of the U.S. Supreme Court. In a dissent from his colleagues’
summary reversal of a Ninth Circuit ruling, Justice Stevens thought “[t]he
brevity of analysis” in the lower court’s “unpublished, noncitable opinion”
(actually a memorandum disposition) “does not justify the Court’s
summary reversal,” and commented that “the Court of Appeals would have
been well advised to discuss the record in greater depth.” He concluded
with the broader complaint that the Court of Appeals’ “decision not to
publish the opinion or permit it to be cited—like the decision to promulgate
a rule spawning a body of secret law—was plainly wrong.”17
Sixth Circuit Chief Judge Boyce Martin recently listed six criticisms of
the use of unpublished dispositions: loss of precedent, sloppy decisions,
lack of uniformity, a lesser likelihood of review by the Supreme Court,
unfairness to litigants, less judicial accountability, and less predictability.18
Consolidating matters somewhat, we can say that the principal criticisms
are that unpublished dispositions create four types of harms: (1) they create
inconsistency in case outcomes, (2) they create the potential for “stealth
jurisprudence,” (3) they may contain sloppy analysis, and (4) people are
unsure about their validity.
If unpublished dispositions do contribute to inconsistency, that
inconsistency certainly can have significant effects, not only on doctrine
but also on particular individuals. This can be seen in a letter to the court
from an attorney about the results reached by two panels in unpublished
memoranda concerning the convictions of two individuals. The
government had used the same theory against both defendants, but one
panel reversed the conviction of one defendant while the other panel
affirmed the second person’s conviction. The lawyer’s frustration was
evident, not only regarding the “anomalous” results “in light of the way the
facts were presented to the jury, as well as the theories and inferences
argued by the government to this Court on appeal,” but also as to the
difficulty of citing an unpublished opinion to support his complaint. He
wrote that the court’s rule precluding citation of a memorandum disposition
“except when it is relevant under doctrines such as the law of the case, res
judicata, or collateral estoppel,” coupled with the Federal Rules, “precludes
argument to the Court by way of a letter such as this,” but he “respectfully
submitt[ed], nonetheless, that the disposition of Mr. Azmanian’s appeal
[was] germane to the result in Mr. Rahimi’s matter as the law of the case.”19
According to this article, unpublished opinions are available on Westlaw or in the Federal Appendix.
Imagination was given to us to compensate for what we are not; a sense of humor was given to us to console us for what we are. -Mark McGinnis