Blog Round-Up – Thursday, April 13th
This week, the Supreme Court voted to allow citation to unpublished opinions in federal courts. Here is an article on the decision by Tony Mauro.
Concurring Opinions has this post on Ash v. Tyson Foods.
The Wall Street Journal Law Blog has this post on the desire for Supreme Court Justices to be “part of the national conversation.”
Ross’s Employment Law Blog has this post on Burlington Northern v. White and this post on Mohawk v. Williams.
Here is an Education Week article on Arlington Central School District v. Murphy.
Orin Kerr has this post on Hill v. McDonough, the lethal injection case.
What is to prevent a court from doing something like the following:
PER CURIAM: Before Judges A, B, and C. [Opinion which is important to parties but breaks no new ground follows]. Judgment below is affirmed (or reversed).
Judges B and C concur in the result only.
***
Under the new rule, you can cite this, but how much is it worth?
Comment by David Yen — April 13, 2006 @ 2:24 pm
Citability was the primary distinction between published and “unpublished” opinions. If you have to research both anyway, as you will now, what is the point in designating an opinion unpublished?
Judge Kozinski’s argument against the change is telling: “At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted ‘entirely’ by law clerks and staff attorneys.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.’ ”
If what Judge Kozinski says about the sausage is true, then there is a much bigger problem here. The parties to the case have to eat the sausage regardless, so we should be fixing the factory so all the sausage is fit to eat. If the federal judges cannot write, or at least critically review and edit, the opinions in all of their cases, then we should alter the rules of jurisdiction so they have fewer cases.
My first candidate for the chopping block is Judge Henry Friendly’s proposal from 1970: any habeas case where the prisoner does not even have a colorable claim he is actually innocent.
Comment by Kent Scheidegger — April 13, 2006 @ 3:04 pm
I don’t think habeas cases are to blame for the increase in the docket of the federal courts of appeals. In any event, the certificate of appealability procedure already gives circuit judges some discretion to weed out meritless habeas appeals.
Comment by Snowball007 — April 13, 2006 @ 9:45 pm
The growth of adhesion contracts providing for compulsory arbitration of disputes, and the Rehnquist Court’s decisions upholding same, have created a much more significant source of uncitable, undiscoverable private law than unpublished decisions ever have.
Comment by r.friedman — April 14, 2006 @ 8:23 am
David, your proposal makes sense–i.e. it would actually work, but I don’t think judges would see the need to do it.
First, my understanding is that the rule change only means that attorneys can mention the nonprecedential opinions in their briefs. The courts are no more bound by those opinions after the rule change than they were before. So, a nonprecedential opinion in which the judges agree only as to the reasoning is just as nonprecedential as the run-of-the-mill unanimous nonprec.
Second, that sort of thing looks like petty civil disobedience. I’d like to think that most judges are above this sort of “nice try, but we found a loophole” practice. It’s basically an invitation for Congress to be more strict in its oversight of the courts, which I don’t think they want.
Comment by Subzero91 — April 14, 2006 @ 9:45 am
“any habeas case where the prisoner does not even have a colorable claim he is actually innocent.”
What does this mean? Quite few cases turn not on “actual” innocence, but use of evidence that is necessary to determine guilt that is somehow improper.
The “harmless error” rule already deals with cases when the evidence wrongly obtained doesn’t “really matter.” Frivilous claims also are addressed, and given the openness of the term, still will be made.
I’m unclear therefore how much use this housecleaning measure would be. Unless it is to severely change how we protect constitutional rights.
Comment by Joe — April 14, 2006 @ 6:31 pm
“I don’t think habeas cases are to blame for the increase in the docket of the federal courts of appeals.”
From what I understand, here in the Ninth Circuit habeas cases and immigration cases make up the bulk of the Circuit’s caseload.
Comment by FernR — April 17, 2006 @ 2:50 pm