As readers of this blog know, I am opposed to the idea that courts can deny future precedent weight by not publishing their decisions. In my view, one of the real limitations of federal judicial power is the fact that when a judge issues a decision, future judges are bound by that decision as a matter of precedent, even if they may not be all that sympathetic to the parties in the future case. This is a core feature of the rule of law.
Unpublished opinions, which carry no precedent weight, are, in my opinion, contrary to the rule of law. Federal appellate rules should be amended to require federal appellate judges to give unpublished opinions the same precedent weight as published opinions.
Abe Gluck, Alfred M. Rankin Professor of Law at Yale Law School and founding dean of the Solomon Center for Health Law and Policy, has done some very impressive empirical research on undisclosed options. Her research finds that in some circumstances, undisclosed options appear to place a disproportionate burden on socially disadvantaged groups of people. A link to her research can be found below.
Is non-disclosure unfair? An empirical examination of the 87% non-disclosure rate in federal appeals.
(Reference) Excerpts from the Federal Court of Appeals ruling
