97. Phantoms of the courthouse (revised)
This week the Supreme Court approved a new Federal Rule of Appellate Procedure, Rule 32.1. Unless Congress disapproves of the rule change - not much chance of that - the rule will become effective next January 1. The rule provides:
A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
The second clause is a shameful compromise with the forces of obscurantism, but still the rule is a welcome, if long overdue, attempt to shine a little light into the dank sewers of the judicial system.
The strength of the common law system - the source of its political legitimacy as a non-democratic generator of law governing a democratic society - is that it chains together the intellects of judges across time. If 20 judges hear cases involving the same issue at roughly the same time, assuming that most (not necessarily all) of the judges are of average intelligence and honesty, and 15 of them arrive at the same conclusion, there's something like a 75% chance that solution is a reasonable one.
If, however, 20 judges hear cases involving the same issue over the course of many years, and 14 judges follow the lead of their predecessor, there's roughly a 73.7% chance the approach they adopt is a practical one, because the impracticality of an unworkable rule will always become apparent over time. In the real world, practicality is an even more important consideration than reasonableness, as Hedley observed four centuries ago.
What made the common law so powerful was precisely its lack of self-consciousness. The judges thought in terms of concrete problems, and sought workable solutions. As other, future judges applied the lesson of the old case to a new reality, they tinkered with the rule laid down in the earlier case. They didn't do so for the purpose of perfecting the rule, of establishing it once and for all in its crystalline form, but to deal with the new variation on the old facts.
One might say that the principles of the common law, in the quasi-codified form in which law students are required to learn them, emerged from the welter of cases. That, I think, is what Holmes meant with his famous opening of The Common Law, when he said that "the life of the law has not been logic: it has been experience" - although it's typical of Holmes' style that it should be hard to pin down his precise meaning.
But I think it's much more accurate to say that the principles of the common law are simplifications of it. The strength of the common law was that it linked together the brainpower of many judges, and matched sets of lawyers, over time. It was parallel processing across the fourth dimension. That made it smarter than any one of its judges, because it was based on the life experiences of numberless litigants over the course of centuries. No single judge, no matter how brilliant, could possibly attain that kind of intellectual scope.
Attempts, such as the Restatements, to reduce the common law to a set of cast-in-concrete rules not only inhibited its future development, but unavoidably reduced it to something a single human brain could comprehend.
When appellate judges prohibit lawyers from citing their "unpublished" opinions, they are reducing the flow of new ideas into the legal system. They are frustrating the very system that gives them their authority to announce new law. They are attempting to impose their own will on the development of the law itself, by deciding which decisions should be considered "precedential" and which should not. But, because each judge, no matter how brilliant as an individual, is infinitely less knowledgeable than the whole of the common law, attempts to dictate the development of the common law can only dumb it down.
In my experience, judges "unpublish" decisions in three circumstances:
(1) When they aren't trying to dictate to the future. This is probably the largest (as well as the only legitimate) category, described by MF in the comment to an earlier version of this post. Many cases are, in fact, routine. I think of these as the okay-you-got-the-surveillance-video-DNA-and-fingerprints-but-is-that-sufficient-evidence-to-convict? cases.
The problem is that judges are roughly as competent at predicting the future utility of their opinions as American car manufacturers are at foreseeing shifts in their market. The only reason a competent lawyer would want to cite an unpublished decision is because it says something not found in a published decision, or says it better.
(2) When the judges on the panel are doing something they don't want to be seen doing. When judges want to evade the authority of existing precedent but can't think of a legitimate reason for altering the case law, they issue an unpublished opinion. When judges realize that one party really ought to win, but they like the other party (or the other party's attorney) more, they issue an unpublished opinion.
Unpublished opinions are a way for appellate judges to pretend not to do what they're really doing. They make it easy for weak-willed panel members to go along with their unscrupulous colleagues, because they can so easily rationalize the result: Oh, well, it's not like it's going to become a precedent. It's a one-time deal. (That's why the advent of unpublished opinions was a godsend to bribe-takers on the bench.)
(3) When the judges are too lazy, dumb or incapacitated by drink, drugs or old age to oversee the work of their clerks. This is far more common than one would prefer to believe. Tony Mauro reports that Judge Alex Kozinski argued against permitting citation to unpublished opinions because "they are drafted 'entirely' by law clerks and staff attorneys. He added, 'When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.'"
So we're to understand that federal judges regularly feed spoiled sausages to the parties seeking justice in their courts? Comparing judicial decision-making to Bismarck's famous sausage factory is perhaps even more provocative than Judge Kozinski intended: exactly how much horse-trading, or horsemeat-grinding, goes on in the cloakrooms of the Ninth Circuit?
Kozinski's "entirely" is no doubt an exaggeration, but his point, I'm sure, is valid. With many unpublished decisions it's hard to know which is more disrespectful: to suggest the judges didn't read the opinion before signing it, or to suggest they did.
Mauro reports that "some federal judges have argued that if this category of opinions can be cited and used as precedent, they will take more time to decide and write, sharply increasing the backlog of cases." In short, the judges will have to work harder to produce opinions they aren't ashamed of. Feeling sympathetic yet?
But there's an even more basic reason why the caseload argument is a red herring. Federal appellate judges have enormous control over their own caseload. I don't mean they can choose what cases to hear (with some significant exceptions, such as habeas corpus). But they don't have to devote 50 pages to deciding every issue in two or three alternative ways. If they reverse a case on one point, they aren't required to tell us about the half-dozen points on which they agree with the trial judge.
Appellate judges could enforce rules of procedure by refusing to consider issues raised for the first time on appeal. They could, at least in theory, resist the temptation to show how smart they are by raising issues on their own. They could let the lawyers do the work, contenting themselves with deciding cases presented to them. They don't, strictly speaking, have to make use of all the research dug up by their clerks.
Most federal appellate opinions could be cut by half or two-thirds without anyone noticing except Lexis and Westlaw, who charge by the page. And those law school libraries that have become dependent on revenue from photocopiers to pay for staff parties.
Friday, April 14, 2006 at 11:39PM in Collective wisdom, Transparency
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