Historical summary of US unpublished decisions from 1964-2007[1]
While there were some prior academic discussions on limiting publications,[2] 1964 is the year the Judicial Conference of the United States recommended that judges limited publications to opinions “of general precedential value.”[3] This was motivated by two emerging issues: (1) the “crisis of volume” in case law; and, (2) the “caseload crisis” for courts.[4]

First, the crisis of volume in case law mostly concerns archival problems related to storage and retrieval,[5] but also relates to the problem of effective mastery of the case law. Advancements in technology and digitization have mostly solved the problems of storage and retrieval, but recent empirical studies on legal databases have pointed to access problems for unpublished decisions.[6] As we will see below, such access problems can create an unfair disadvantage to parties without access to the materials since they cannot research and employ the case law.

Next, the caseload crisis concerns the overloading of courts with cases. There are a number of contributing factors discussed in the literature.[7] A key contributor was the expansion of federal jurisdictions.[8] In response, rather than appointing more judges or providing funding, an administrative reform occurred whereby the federal courts adopted an “Appellate Triage Model.”[9] In short, this model involved three notable changes: (1) judges wrote fewer precedential decisions; (2) courts held fewer oral arguments for non-precedential decisions; and, (3) judges relied more on law clerks and staff attorneys to perform judicial work.[10]

By 1978, every circuit had a “opinion publication plan” to deal with unpublished decisions.[11] While some plans are “not easily categorized,”[12] most plans dealt with four issues: (1) authorization of summary dispositions; (2) criteria for publication; (3) procedures to determine what to publish; and, (4) citation rules around unpublished decisions. This last issue (4) has sparked an explosion of academic literature with respect to violations of the First Amendment,[13] as well as further subtopics flowing from this.[14]

The subsequent status of unpublished decisions was contentious.[15] Jurisdictions proceeded in varying ways on these rules.[16] Commentators have since stressed that many court decisions have deviated from their own publication rules. Empirical methods of tracking these deviations have been particularly fruitful.[17] Within the last thirty years, scholars have given special attention to the caseload problem and its effects the quality of decisions.[18] 

One author attempts to parse out three rules that capture the core of the debate around unpublished decisions: 

[1] the selective publication rule itself, which authorizes the court to issue unpublished opinions and specifies the criteria the court is to use to determine whether to publish a particular opinion;

[2] the no-citation rule which bars or limits counsel from citing unpublished decisions in materials filed with the court; and

[3] the no-precedent rule, which declares that unpublished decisions have no or limited precedential value.[19]

Interestingly, these three rules map onto the debates in the UK and Canada. In the US context, the next major development was the abolishment of the no-citation rules. The Advisory Committee on the Federal Rules of Appellate Procedure, receiving approval from the Supreme Court, pushed and passed Rule 32.1 which was effective December 1, 2006.[20]

Post-2007 developments: contrasts and parallels between Canada and the USA in the rationale around unpublished decisions

Rule 32.1 abolished “no-citation” rules and no circuit was allowed to restrict citation of unpublished decisions as of January 1, 2007.[21] Crucially, this rule was silent on the precedential value of unpublished decisions, and it was not clear whether courts could designate some opinions as having no precedential value. While circuits have proceeded to fill in many of these gaps by adopting its own rules to fit jurisdictional practices, all circuits have determined that unpublished decisions are not precedential but may have persuasive value.[22] Here is one example from the Ninth Circuit of criteria for publication:

(a) Establishes, alters, modifies or clarifies a rule of federal law, or

(b) Calls attention to a rule of law that appears to have been generally overlooked, or

(c) Criticizes existing law, or

(d) Involves a legal or factual issue of unique interest or substantial public importance, or

(e) Is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel’s disposition of the case, or

(f) Is a disposition of a case following a reversal or remand by the United States Supreme Court, or

(g) Is accompanied by a separate concurring or dissenting expression, and the author of such separate expression requests publication of the disposition of the Court and the separate expression.[23]

The ambiguities around Rule 32.1 have sparked much debate and rich scholarship. One writer has argued that the empirical data from the last twenty years of unpublished decisions shows no correlation to caseload volume; in fact, while unpublished decisions have “continued increased over time, overall caseload volume has not.”[24] Other writers have identified differences in judicial decision-making between published opinions and unpublished opinions.[25] The discussions continue to present day regarding the status and function of unpublished decisions, especially in terms of its practical and jurisprudential implications. Notably, Richard Posner has been one staunch critic of unpublished reasons.[26]

It is difficult to make sweeping comparisons between, say, the discussions in the US and the discussions in Canada. US scholarship has similar normative concerns around judicial reason-giving, principles of democracy, non-arbitrariness, and common law concerns.[27] The Canadian rationale for reversing optional written reasons, for instance, is more-or-less analogous to the US worries about transparency; however, one might observe that the US literature is generally more concerned about the quality of judicial decision-making over the need for transparency.[28] Additionally, the discussions in the US around the status of unpublished decisions and their precedential value have shifted to the effects of a “deteriorated” circuit court system on individuals.[29]

One practical issue: asymmetries in immigration litigation (i.e., DOJ’s internal access to material that is not readily accessible to private parties).

A particularly problematic aspect of current practices around unpublished decisions is the potential asymmetries in litigation. For example, Kegan et al illustrates this point through petitions to review orders of removal against immigrants.[30] Their project analyzes on the availability of important cases decisions through common legal research tools and propose the following taxonomy of decisions: (1) precedent decisions; (2) nonprecedent, visible decisions; (2) nonprecedent, invisible decisions; and, (4) nonmerits decisions (invisible).[31] They focus on the (4) nonmerits decisions which may have significant value in litigation and they find that a large body such decisions are practically invisible in the immigration decisions-making context.[32] They note:

[…] litigants may have unequal access to potent legal authority. Consider that in an administrative law setting, the Department of Justice could theoretically have access to every case through its internal systems because it serves as the government’s law firm in all of them. Private parties would not have this access and thus could be disadvantaged if unpublished decisions start to have more influence in litigation. Nevertheless, this new system has survived despite its unresolved ambiguities.[33]

This raises obvious social justice issues of creating additional barriers to having full engagement with the courts. This results in different tiers in accessing the justice systems. Richman and Reynolds first describe this as a “two-track” system of justice:

Track-One-the portion of the circuit courts’ terminations that are decided using the traditional appellate process (oral argument, conference, published opinion) about half the total.

[…] Next, consider the Track-Two cases-those cases that are screened out of the traditional appellate process. These cases are not argued, often there is no conference, no opinion is published and, in some cases, no opinion is even written. These cases get very little attention from the judges; most of the work is done by staff attorneys and law clerks.[34]

McAlister develops this idea through empirical data. The “track-two” cases often involve private and pro se litigants – “30% of administrative proceedings” involving Social Security disability and immigration matters are pro se litigants.[35] McAlister explains:

Pro se appellate litigation therefore predominately involves prisoner, civil rights, habeas corpus, and other civil proceedings affecting vulnerable communities (including individuals in economic distress, without permanent status in the United States, and with health crises or disabilities).[36]

The upshot of McAlister’s article is that unpublished decisions may be necessary for efficiency concerns, but courts ought to be wary of “Kafkaesque” unpublished decisions and perhaps make public the reasons for the ruling (i.e., even if it involves releasing the staff lawyer or law clerk’s memos). McAlister brings us back to the importance of reason-giving for procedural fairness, and such issues cut to the core of normative principles such as the stare decisis and non-arbitrariness.[37]

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[1] For the most comprehensive work on this topic, see William M Richman & William L. Reynolds, Injustice On Appeal: The United States Courts of Appeals in Crisis (Oxford: Oxford University Press, 2012).

[2] For a look into discussions pre-1964, see William L Reynolds & William M Richman, “The Non-Precedential Precedent – Limited Publication and No-Citation Rules in the United States Courts of Appeals” (1978) 78:6 Colum L Rev 1167.

[3] Administrative Office of the United States Courts, Judicial Conference Reports 1962-64, at 11.

[4] For a detailed historical analysis of the reasons for and against restricting publications, see Robert J Martineau, “Restrictions on Publications and Citation of Judicial Opinions: A Reassessment” (1994) 28:1 U Mich JL Reform 119. See also, Charles E Carpenter Jr, “No-Citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy, The ” (1998) 50:1 S C L Rev 235.

[5] John B Winslow, “Courts and the Papermills” (1915-1916) 10:3 Ill LR 157.

[6] In a forthcoming article (see https://ssrn.com/abstract=3652566), Merritt McAlister examines commercial databases and their access to unpublished federal appellate decisions. There appears to be an access problem previously identified by scholars in the immigration context, yet the problem seems to be a broader and pervasive in other areas of law as well. 

[7] For a discussion on the socioeconomic changes resulting in caseload between 1950-1980, see Marjorie Lakin & Ellen Perkins, “Realigning the Federal Court Caseload” (1979) 12:4 Loy L A L Rev 1001. Cf. Michael C Gizzi, “Examining the Crisis of Volume in the U.S. Courts of Appeals” (1993) 77:2 Judicature 96.

[8] See Richman & Reynolds, supra note 1 at c 1.

[9] Richman & Reynolds, supra note 1 at c 1-2. See also David C Vladeck & Mitu Gulati, “Judicial Triage: Reflections on the Debate over Unpublished Opinions” (2005) 62 Wash & Lee L Rev 1667.

[10] Richman & Reynolds, supra note 1 at c 1-2

[11] Ibid.

[12] Richman & Reynolds, supra note 2 at c 1173.

[13] See, for example, Salem M Katsh & Alex V Chachkes, “Constitutionality of No-citation Rules” (2001) 3:1 J App Prac & Process 287.

[14] The Journal of Appellate Practice and Process published widely on such topics during this period. See, for example, Stephen L Wasby, “Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish” (2001) 3:1 J App Prac & Process 325.

[15] See Patrick J Schiltz, “Much Ado about Little: Explaining the Sturm und Drang over the Citation of Unpublished Opinions” (2005) 62 Wash & Lee L Rev 1429; Alvin B Rubin, “Bureaucratization of the Federal Courts: The Tension between Justice and Efficiency ” (1980) 55:5 Notre Dame Law 648; William L Reynolds & William M Richman, “An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform” (1981) 48:3 U Chi L Rev 573.

[16] For an excellent survey of where each state has landed on these rules, see Stephen R Barnett, “No-Citation Rules under Siege: A Battlefield Report and Analysis” (2003) 5:2 J App Prac & Process 473.

[17] A 2001 article by Merrit and Brudney used the rich data on labor law opinions to illustrate this point. See Deborah Jones Merritt & James J Brudney, “Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals” (2001) 54:1 Vand L Rev 69. See also, Michael Hannon, “A Closer Look at Unpublished Opinions in the United States Courts of Appeals” (2001) 3:1 J App Prac & Process 199.

[18] See, for example, Bert I Huang, “Lightened Scrutiny” (2011) 124:5 Harv L Rev 1109. See also, Boyce F Martin Jr, “In Defense of Unpublished Opinions” (1999) 60:1 Ohio St LJ 177.

[19] Norman R Williams, “The Failings of Originalism: The Federal Courts and the Power of Precedent” (2004) 37:3 UC Davis L Rev 761 at 768-769.

[20] Richman & Reynolds, supra note 1 at c 5. For a policy analysis, see Jessie Allen, “The Right to Cite: Why Fair and Accountable Courts Should Abandon No-Citation Rules,” (2005) Judicial Independence Series, Brennan Center for Justice at NYU School of Law.

[21] “A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like.” See Memorandum from Judge Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules, to Judge David F. Levi, Chair, Standing Comm. on Rules of Practice & Procedure 2 (May 6, 2005).

[22]Richman & Reynolds, supra note 1 at c 8-11.

[23] Federal Rules of Appellate Procedure (FRAP), Ninth Circuit Rules, R. 36.2.

[24] See Merritt E McAlister, “Downright Indifference: Examining Unpublished Decisions in the Federal Courts of Appeals” (2020) 118:4 Mich L Rev 533 at 551, 554-561.

[25] See, for example, Denise M Keele et al, “An Analysis of Ideological Effects in Published versus Unpublished Judicial Opinions” (2009) 6:1 J Empirical Legal Stud 213. See also Peter W Martin, “District Court Opinions That Remain Hidden Despite a Long-Standing Congressional Mandate of Transparency – the Result of Judicial Autonomy and Systemic Indiffernece” (2018) 110:3 Law Libr J 305.

[26] See Richard A Posner, The Federal Courts: Crisis and Reform (Cambridge: Harvard University Press, 1985). He has held to his views and continues to be vocal in interviews, newspapers, and subsequent articles. See, for example, Richard A Posner, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (Scotts Valley: CreateSpace Independent Publishing Platform, 2017).

[27] For an excellent summary of the debates and a suggestion for a novel framework addressing retroactivity principles, see Elizabeth Earle Beske, “Rethinking the Nonprecedential Opinion” (2018) 65:4 UCLA L Rev 808. For a common law argument against unpublished decisions, see Richard B Cappalli, “The Common Law’s Case against Non-Precedental Opinions” (2003) 76:4 S Cal L Rev 755.

[28] Richman & Reynolds, supra note 1 at c 6, 8, 10.

[29] Richman & Reynolds, supra note 1 at c 1, 12-14.

[30] Michael Kagan, Rebecca Gill & Fatma Marouf, “Invisible Adjudication in the U.S. Court of Appeals” (2018) 106:3 Geo LJ 683.

[31] Ibid at 689.

[32] Ibid at 696-700.

[33] Ibid at 694.

[34] William M Richman & William L Reynolds, “Elitism Expediency and the New Certiorari: Requiem for the Learned Hand Tradition ” (1995-1996) 81:2 Cornell L Rev 273 at 303.

[35] McAlister, supra note 24 at 556.

[36] Ibid.

[37] For a look into the US jurisprudence on precedent, see Lauren Robel, “The Practice of Precedent: Anastasoff, Noncitation Rules, and the Meaning of Precedent in an Interpretive Community” (2002) 35:2 Ind L Rev 399; Martha J Dragich, “Will the Federal Courts of Appeals Perish if They Publish–Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat” (1995) 44:3 Am U L Rev 757; Elizabeth Y McCuskey, “Submerged Precedent” (2016) 16:2 Nev LJ 515.