Commentary: Unpublication and the JudicialConcept of Audience

Recent years have seen an increased focus on the decisionmaking practices of the federal courts of appeals. Attention was focused on the phenomenon of nonprecedential appellate opinions by Judge Arnold's opinion for the panel in Anastasoffv. United States1 holding that a court rule could constitutionally strip an unpublished court decision of all precedential value and by Judge Kozinski's opinion for the panel in Hart v. Massanari,2 which rejected Anastasoff'and upheld the constitutionality of the Ninth Circuit's ban on the citation of, and refusal to give precedential effect to, unpublished dispositions of that circuit.3 Rulemakers have also turned their attention to the issue; a proposed rule on the citation of unpublished opinions, Proposed Federal Rule of Appellate Procedure 32.1, has been under consideration for several years.4Many observers, among them several of the scholars contributing to this symposium, have pointed to a range of problems and concerns raised by the widespread practice of unpublication generally and no-citation rules in particular.5 As Professor Schiltz notes in his contribution to the symposium, some commentators have argued that the current system threatens the values of fairness and openness that are central to our procedural system.6 Professor Pether, in her Stanford Law Review article and her contribution here, has presented evidence that the current system particularly disadvantages members of vulnerable groups.7 Professor Barnett testified in favor of the proposal to permit citation of unpublished opinions,8 and his recent empirical work suggests that lawyers who have experienced rules permitting citation support such rules and find they work well.9I share many of the concerns raised by our panelists and others about the current system and will revisit them. Instead, I will reflect briefly on how revealing the debate over nonpublication has been. It has given rise to some very frank and often surprising descriptions of the work of the federal appellate courts today. I will attempt a full description here, but I will point to a few nuggets that seem to me to be particularly revealing.Professor Schiltz's summary of comments in opposition to the changes to Rule 32.1 includes the following description: Because unpublished opinions are hurriedly drafted by staff and clerks, and because they receive little attention from judges, they often contain statements of law that are imprecise or inaccurate.10 One of the members of the Advisory Committee for the Appellate Rules opposed Rule 32.1 on the grounds that unpublished opinions are junk law.11 As other symposium participants have noted, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit has likened some unpublished opinions to sausage that is not safe for human consumption.12Contrast these statements to Judge Kozinski's description of the process of writing a published opinion. In an interview with Jeffrey Cole published last summer in Litigation, the judge reported that his opinions go through fifty or more drafts, sometimes many more.13 He repeatedly stressed the care with which each phrase of a published opinion is scrutinized.14The extreme disparity found in these descriptions is striking. Of course, these descriptions do represent extremes, and perhaps some rhetorical excess as well. (As Professor Barnett's empirical work suggests, many lawyers find the quality of most unpublished opinions to be good.15) Nevertheless, they do suggest that judges believe they are engaged in two very different tasks-one task represented by published opinions, one by unpublished dispositions.16 Moreover, at least some judges believe that those separate tasks carry with them very different obligations.n One might describe the differences by saying that the judges seem to believe they are writing for very different audiences.The audiences for unpublished dispositions are described as solely the litigants, their attorneys, and the lower court whose judgment has been appealed. …