Unpublished Law

In the process of declining to revisit a prior opinion after the Ninth Circuit (in a decision called McCoy) created a Circuit split by disagreeing with the Seventh Circuit, Judge Frank Easterbrook hits one of my pet peeves – unpublished opinions on unsettled questions of law, and the courts that ignore them:

Before McCoy issued, every federal judge (trial or appellate) who had analyzed this subject had concluded that [Section] 226.9(c) requires notice of a change in contractual terms, but not of a lender’s decision to invoke its rights under terms already in the contract….It takes more than a vague regulation plus cloudy commentary to displace a contract.
One of the courts that had reached this conclusion was – the ninth circuit. Evans v. Chase Bank USA, N.A., 267 Fed. App’x 692 (9th Cir. 2008). True, Evans is a nonprecedential decision, see Fed. R. App. P. 32.1, and therefore did not bind the panel in McCoy. But nonprecedential decisions should be used only when the
legal issue is clear enough that all reasonable judges will come out the same way
. The panel in Evans must think that the result of the panel in McCoy is unreasonable. What’s more, there was a persuasive dissent in McCoy written, as it happens, by a judge of this circuit sitting by designation. McCoy, 2009 U.S. App. LEXIS 5380 at *25–*46 (Cudahy, J., dissenting). If there is a conflict in need of resolution, it is among judges of the ninth circuit rather than between the seventh and the ninth.

This goes to the heart of the unpublished-opinion issue. Nobody disputes that, with the volume of appeals ever increasing, federal appellate courts may sometimes write abbreviated dispositions of routine cases without producing a full opinion suitable for publication in the Federal Reporter – opinions that provide just enough reasoning to explain to the parties that their arguments were heard and understood and why the court ruled as it did, but without requiring the court to concern itself with how the opinion will be read as a guide to future cases. But in a common law system, the emphasis must be on routine – like the scores of repetitive immigration, pro se cases and prisoner appeals that constitute the biggest chunk of the volume of the docket and that often presents no serious legal controversy. But if a court is grappling with the application of law to fact in a way that is frequently litigated in the lower courts, and still moreso if it is addressing a question on which courts have divided or the courts of that Circuit have yet to definitively rule, it is no excuse to say, in essence, ‘we decide this case without deciding the rule’ if the rule governs that case. Instead, my sense from seeing this arise with increasing frequency is that courts are disposing of more and more appeals raising serious, contested questions of law, sometimes on issues that have divided districts or circuits, and marking them unpublished. The result is bad for the administration of law and justice because it ignores the primary function of appellate courts: to say what the law is for the purpose of settling legal questions so that trial courts can focus to the greatest extent possible on the facts.

2 thoughts on “Unpublished Law”

  1. I practiced in Florida years ago and the Appellate courts often used PCAs (per curiam affirmed) to dispose of cases without an opinion or a simple cite to the standard precedent. Often used in criminal cases where the defendant is entitled to an appeal but has no real issue to raise.
    However, it was infuriating to have a commercial case where critical issues involved UCC sections that had no Fla precedent or the only cases on point were many decades old and the court issue a PCA. Especially when both sides basically agreed that the trial court had erred and the disagreement was over whether his ruling was salvagable. Clients had a hard time understanding paying a bill when they lost on a PCA.
    Also once caught an appellate judge try to reduce her workload by issuing a PCA when the panel had voted to overturn and assigned her the opinon to write. Pretty shocking.

  2. The ironic thing is that Easterbrook’s comments have the ability to imbue non-precedential opinions with even more precedential value than published opinions!
    After all, before, if I cited a non-precedential opinion, at best it was just one case among many (and less authoritative), and at worst my opponent could argue that I was not even allowed to discuss it because of its non-precedential designation.
    But now I can cite Judge Easterbrook’s comment to establish that the case I cited is not just one case among many but a case that stands for a proposition so obvious “that all reasonable judges will come out the same way.”
    The only sensible approach is to eliminate the NPO.

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