In Defense of Less Precedential Opinions: a Reply to Chief Judge Martin

Abstract

Many commentators, including Chief Judge Boyce F. Martin, Jr., argue that unpublished opinions serve as a necessary tool for federal appellate courts to manage their caseload and to avoid confusion in the creation of legal doctrine. Moreover, Chief Judge Martin and others assert that, for this tool to operate effectively, citations to unpublished opinions must be strictly prohibited. The authors agree that unpublished opinions can play a vital role in the operations of the federal courts of appeals. The authors urge, however, that this role should be reconceived in light of the unique institutional structure of the federal courts of appeals. The authors observe that the federal appeals courts must render a decision on every case brought before them, and that, because the Supreme Court rarely grants certiorari, the decisions of the federal court of appeals will usually be final. In addition, most cases are decided by a three- judge panel that is designated to speak for the entire court-the decision of this three-judge panel is considered binding upon all judges in the circuit for all future cases. The interaction of these unique institutional factors places the courts in a difficult position when new or unsettled legal issues are raised The authors argue that, in these circumstances, unpublished opinions can play an important role in the development of legal doctrine, allowing appellate judges to engage in an intra-court dialogue before reaching a firm resolution of difficult legal issues. For unpublished opinions to play this role, however, practitioners must be allowed to cite to them.