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DON’T EAT THESE SAUSAGES!!!
There are many weird things in the legal system that you might not know about if you’re not an attorney. This is a story about one of them.
When courts issue a decision on a case, the decision is generally rendered via a written opinion. These opinions became part of the law as precedent, and can be cited as legal authority from there on out. Except, sometimes when a court issues its decision it deems the decision “unpublished.” Even though the opinion is techincally published and readible by the masses (via legal databases), such “unpublished” opinions are not legally binding precedent and the rules of many courts say that the opinions cannot even be cited to the court. As an attorney, I can’t even begin to tell you how frustrating this rule ends up being. Invariably, while doing legal research to find those cases which are factually similar to your case and which directly support the position you need to make, the most relevant cases will be such unpublished opinions, meaning you’re S.O.L.
Well the Supreme Court, which is in charge of upkeep for the rules governing federal courts, has decided that this rule is somewhat nonsensical. Under a newly passed rule (which will take effect the end of this year, unless Congress takes steps to counter it), unpublished opinions can be cited to federal courts as authority. This new rule says that the courts are still entitled to give unpublished opinions varying precedental weight, but at least attorneys can rely upon the decisions and put them before the court.
During debates over this new rule, a circuit judge for the Ninth Circuit Court of Appeals, Judge Alex Kozinski, said that the reason courts disfavor citation to these unpublished opinions is that they are generally drafted by law clerks and other attorneys working for the court. Judge Kozinski then provided this colorful analogy:
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.
Well, in all deference to your honor, and I’ll acknolwedge that I may be going out on a craaaaazy limb here, but instead of telling folks not to eat the sausage because they’re not safe as people food, what if, instead, you make better sausages? The cited excuse for this practice, that it would be burdensome and time consuming for judges to spend more time on these opinions, is utter bunk. You’re charged with one of the most important foundational duties in our nation, and you can damn well spend the time to do it right. Not to mention the argument put forth by a late 8th Circuit appellate judge that you are violating Article III of the Constitution when you attempt to remove any precedential value from unpublished opinons. Shame on you.
I’ll take my sausages with relish and extra kraut, thanks much.
(via Patently-O)
