As readers of this blog now know, I am opposed to the idea that courts can, by not publishing an opinion, render it of no weight as precedent in future cases. In my view, one of the substantial limits on federal judicial power is the fact that when judges issue an opinion, future judges are bound by that opinion as a matter of precedent even if they sympathize less with the parties in that future case. This is a core feature of the rule of law.
Unpublished opinions that have no weight as precedent are, in my opinion, inconsistent with the rule of law. The Federal Rules of Appellate Procedure need to be amended to require federal court of appeals judges to give the same weight as precedent to unpublished opinions as they give to published opinions.
Abbe Gluck, who is the Alfred M. Rankin Professor of Law and the founding Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School, has done a very impressive empirical study of unpublished options. Her study found that, in some circumstances, they appear to burden heavily socially disadvantaged groups of people. A link to her study appears below.
Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals
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