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The federal courts follow the
same concept as the state courts, namely that a judge merely “errs” and the
aggrieved party’s remedy from a judge’s “erroneous” decision is by way
of appeal. By statute a party aggrieved by the final judgment of the
United States District Court has a right to appeal to the United States
Court of Appeals. However, these days, the great majority of the opinions
handed down by the federal appeals courts are marked "Not To Be
Published," "Not Precedential" or words to that effect. Based on the
annual statistics collected by the Administra-tive Office of the U.S. Court
in the year 2000 of the 27,516 appeals 21,895 decisions were unpublished
or four-fifth of all the appeals (excluding the U.S. Supreme Court). This
pattern repeated itself in the year 2001 when of the 28,840 appeals 23,166
decisions were unpublished. The national average of unpublished opinions
is 80% which in some federal appeals court is as high 91.5%, which remains
the same for the year of 2003.
Even if these unpublished non-precedential "per curiam affirmed"
decisions contain some form of explanation, generally they are not
carefully analyzed as are the published opinions. In many cases the
decision is based on facts inaccurately stated, sometimes fabricated and
do not follow the controlling precedent. It is not unusual for a judge's
law clerk to write these opinions. In a publication by St. Thomas
University School of Law, attorney Edward Pfister now a lawyer in private
practice, boasted that his experience as a law clerk prepared him for the
rigors of commercial litigation. He noted that "writing opinions for Judge
Faye [then a judge of the 11th Circuit] and court orders for Judge Nesbitt
[then a judge of the U.S. District Court in Miami, Florida] honed my
writing skills". He also stated that he reviewed motion papers for a
motion to dismiss, and was able to to draft an order on a motion for
summary judgment. Most certainly this should be heart warming to the
some 80% of appellants whose appeals are marked unpublished and to the
parties whose cases are dismissed, after spending substantial sums on
litigation, that law clerks fresh out of law school
are "honing their skills" on them. So, this sort of makes obvious
why these opinions go unpublished.
The current system, in the federal court which limits the publication of
opinions and their precedential value, emerged from the 1964 U.S. Judicial
Conference, the governing body of the federal courts for administrative
purposes. The history of the Judicial Conference goes back to 1922 when a
Conference of Senior Circuit Judges was created by Congress. In 1948
Congress changed the name to Judicial Conference of the United States. The
judicial conference is made up of the Chief Justice of the U.S. Supreme
Court and one appointed judge from each of the 12 Circuit Courts of
Appeal. The conference operates independently and in closed session - no
public record, and are not covered under the Freedom of Information Act.
In response to the increased volume and to reduce the workload of the
judiciary the Judicial Conference recommended in 1964 that courts of
appeal and district courts limit the publication of opinions only to what
would have precedential value. (Judicial Conference of the United States,
Report 11, 1964.) Regardless of this recommendation, limited publication
standards were not generally accepted until almost a decade latter, when a
Federal Judicial Center commission issued a report on the standards for
non-publication. (Judicial Conference of the United States, Report 12,
1973.) Today, all eleven circuit courts of appeal limit the publication of
opinions and their precedential value. (Serfass, Melissa M. and Cranford,
Jessie L., "Federal and State Court Rules Governing Publication and
Citation of Opinions," 3 J. App. Prac. & Process, 251, 253-255, Spring
2001).
This does not mean that the opinions are secret. They can be found in the
court files. What it means that the opinion is not to be published in a
book a printed medium. So, that the opinion is not sent to West Publishing
Company, known as the “reporters” or to any other legal publisher with the
intent to be printed in a book or to be published by any other means to be
available for purposes of a precedent. As defined in Black’s Law
Dictionary precedent is a prior case or decision of a court which can be
used to furnish an authority in a following case based on identical or
similar question of law, or similar facts. Courts are supposed to decide
cases on the basis of principles established in prior cases. The objective
is to furnish some predictability as to the outcome of a case. That is why
when an attorney takes on a case he may have to do research to see as to
what if any precedent has been established based on that particular set of
facts and law.
Generally non-published opinions cannot be used as precedent. They can be
used only to establish the law of the case, res judicata or collateral
estoppel, in an action. These are technical terms used to determine if
there was any prior litigation on the issues in the case and the effect
that it would have on the current litigation. In the 11th Circuit which
covers Florida under Local Appellate Rule 36-2 it is expressly provided
that unpublished opinions are not considered binding precedent, which is
the general rule in other circuits. Thus, the court is not bound by an
unpublished opinion whereas a published opinion is binding on the court. It is also apparent that in
many unpublished opinions the published opinions have no binding affect. A
most interesting twist in some of these unpublished opinions is that they
interject a finding saying something like “had we reviewed the judgment on
the merits we agree with the lower court”. But, the fact is that in many
cases the
judges did not review the issues on the merits and base the decision on
fictitious arguments
in a make believe that the issues were determined when
they were not. Some of these unpublished opinions are of such poor quality
that it would embarrass the judiciary if, they were published.
Under 11th Cir. R. 36-1 the appellate court can also affirm the lower
court without an opinion which is also the rule in many other circuits.
The basic presumption for such affirmance is that the judgment of the
district court is based on finding of fact that are not clearly erroneous,
that there was sufficient evidence and there was no reversible error of
law. The obvious argument against this practice is that if the judges of
the appeals court made all this determination they should be able to write
it down. The failure to do so, breeds suspicion and mistrust in the
system. An appeal in federal court is expensive, requires extensive
briefing and citation of authorities and the parties should be entitled to
some explanation.
In practice the circuit courts of appeal are the courts
of last resort although it is said that an aggrieved party can proceed to
the U.S. Supreme Court. Yes a person can but, the U.S. Supreme Court
accepts to hear about 80 cases a year out of about 10,000 petitions
filed annually. In fact the number of opinions by the US Supreme
Court has decreased over the years
click here.
There is no requirement as to how many published opinions an appellate
court has to do. The published opinions are now generally limited to if,
it is decided by the court that it (1) establishes a new rule of law, (2)
relates to a legal issue of continuing legal interest, (3) creates a
conflict with a decision of another circuit, (4) affects an existing rule,
(5) applies an existing rule to a significantly different set of facts or
(6) is a significant contribution to legal literature.
What is interesting that while the excuse for non-published, not
precedential opinions is to reduce the workload of the appellate judges,
some of these judges, lecture in law schools on a regular basis, some may
teach a course, go on lecture tours, write numerous articles, book reviews
and books. One federal judge of the Southern District of New York
even boast of writing operas! He claims sitting on the federal bench is a
fun job. Mentioned are the high profile cases, which get the
attention, to give the appearance that the judicial work is done.
What about the average citizens' case? To read an article on the diverse
interests of a judge
click here. Yet another federal court judge who sat
also sat as Chief Judge of the
Seventh Circuit boast of writing innumerable books, giving numerous
lectures writing articles, which to a reasonable person gives the
impression that sitting on the bench was a mere side job
http://www.law.uchicago.edu/faculty/posner-r/.
All these are rather time consuming but, obviously results in
additional income to the judicial salary. These activities obviously, take
away time and energy from deciding cases and/or writing appellate opinions.
As reported in National Law Journal on May
26, 2003 the federal judiciary is now considering a rule
that would allow lawyers to cite unpublished
opinions in all appeals courts. However as to what precedential
value can be placed on such opinion has been sidestepped by the U.S.
Judicial Conference Advisory Committee. In about two years all court
opinions—including unpublished ones—would
be posted on the courts' own Web sites. However, the circuits have
different rules on the extent to which unpublished opinions may be cited.
There is nothing here that these opinions would be published in the
official reporters. Additionally, the proposed rule has yet to go through
several channels, including for "public comment" the Judicial Conference,
the Supreme Court and Congress, so that it has yet a long road to travel.
To read an article on
A New
Proposal to Permit Lawyers To Cite “Unpublished” Opinions
click here.
A U.S. Judicial Conference
advisory committee endorsed a proposed rule that would make it easier for
litigants to cite so-called unpublished opinions in federal court.
But, under this proposal Federal circuit courts of appeal would still be
allowed to specify how much weight they will give to unpublished opinions.
At this time rules in four circuits prohibit virtually all citation of
unpublished opinions -- the 2nd, 7th, 9th and Federal Circuits. This
would be swept away by the new rule. A lone dissenting opinion
referred to unpublished opinions as "junk law",
click here.
Valuable information on unpublished opinions is provided by the website of
The Committee for the Rule of Law at
www.nonpublication.com. The objective
of the Committee is the full publication of all decisions of the United
States Court of Appeals and the Court of Appeals of California in official
reports and to eliminate all rules of court prohibiting the citation of
approximately 80% of all decisions of appellate court to any court for any
purpose.
The Committee brings to light that the courts of appeal across America
have become judicial assembly lines dispensing inconsistent product with
their unpublished decisions obviously without significant involvement of
any authorized justice. The Committee maintains that these decisions
encourage expedient, not careful consideration as the basis for judgment
and constitutes an invitation to error, incompetence, corruption and
tyranny.
The Committee for the Rule of Law was organized by a group of concerned
lawyers, academics, jurists, and other citizens. The Committee for the
Rule of Law solicits reports of abuses of non-published opinions.
The dangers of undermining the rule of law,
with unpublished opinions is further discussed at
www.rule-of-law.info
Yet another interesting website on unpublished opinions can be found at
Law Net
www.thelaw.net/advertorial.htm which is likewise critical of
unpublished opinions. One of the advocates mentioned against unpublished
opinions is Judge Richard Arnold. Also discussed in detail is the Anastasoff opinion which intensified the ongoing controversy, galvanizing
the system's critics and supporters.
The federal court keeps two sets of record: "The Official
Record" for public consumption and the "Chamber Papers" viewed only by
those inside the judiciary.
Secret Courts- Secret Law - by Larry
Bolin.
Yet another problem pursuant to an article
that appeared in the Miami Daily Business Review on
February 25, 2004
is that district judges are picked to fill
in panels for the circuit court appeals. It has been observed that these
judges tend to keep a low profile. A handful of legal scholars have
looked at the phenomenon and what they’ve found is that the circuit courts
have consistently made use of district judges to fill gaps in their panels
since at least the 1980s. They’ve also confirmed that these judges do not
write opinions as often as their numbers would lead one to expect. Those
scholars have warned of possible problems posed by the use of designated
district judges, questioning, for instance, whether the practice is
consistent with the mission of the circuit courts and wondering whether
litigants judged by panels on which they sit are really getting a full
measure of justice.
Yet another phenomena is the ghost written
opinions. The Third U.S. Circuit Court of Appeals criticized this saying
that Federal judges must write their own opinions and cannot simply sign
an opinion that was "ghostwritten" by lawyers. In Bright v.
Westmoreland County, a unanimous three-judge panel issued a stiff
rebuke to U.S. District Judge Arthur J. Schwab of the Western District of
Pennsylvania after concluding that defense lawyers had submitted a
"proposed opinion" and that Schwab adopted it "nearly verbatim" as his
own. "When a court adopts a party's proposed opinion as its own, the court
vitiates the vital purposes served by judicial opinions. To read further
click here.
It
is becoming more and more acknowledged by appellate judges that they do
not write their opinion and the fact that they do not even read the briefs
and the record, for which they rely on their staff. See, an
insight into judicial decision process in an article written by judge Alex Kozinski, a court of appeals judge of the 9th Circuit - The
Appearance of Propriety The Judicial Canons Have Got it Wrong, The Real
Ethical Issues Facing Judges Are Hidden
click here.
The add below appeared on September 12, 2000 on the Website of Cornell Law
School Career Office, seeking applicants for a position in the United
States Court of Appeals for the 4th Circuit. It provides additional
evidence that many appeals are handled and decided by law clerks
obviously, the ones that are marked not “Not for Publication, Not
Precedential”. The bold emphasis added was in the original help wanted
advertisement.
Cornell Law School Career Office
151 Myron Taylor Hall
Ithaca, NY 14853-4901
Contact: Shirley@Law.Mail.Cornell.edu
September 12, 2000
RICHMOND, VA - U.S. COURT OF APPEALS, OFFICE OF STAFF COUNSEL, seeks
applications for up to 5 entry-level, full-time staff attorney positions.
Staff attorneys assist the judges of the Fourth Circuit in the disposition
of cases on appeal. Attorneys review appeal records in cases that are
diverted from the oral argument calendar and prepare proposed opinions and
orders for consideration by panels of 3 judges. The office handles
3200-3500 appeals each year. Half of the cases assigned to staff attorneys
are prisoner civil rights and post-conviction relief appeals, one-fourth
are direct appeals from criminal convictions in federal district courts,
and the balance are direct appeals from federal civil judgments.
Attorneys hired directly out of law school and those with minimal
experience will be appointed at Judicial Classification Level 27,
currently $42,156 annually. Attorneys with relevant legal experience may
qualify for a higher salary level. Upon satisfactory performance,
attorneys are considered for promotion following their first year of
employment. Attorneys receive annual and sick leave and are eligible to
participate in federal health and life insurance programs. Applicants must
be citizens of the United states; be students at, or graduates of, AALS-accredited
law schools; be in the top 20% of their law school graduating classes;
have law review or other legal publication experience, writing experience
as a member of an interscholastic moot court competition team, or
equivalent exceptional writing experience; possess particular proficiency
in legal analysis and writing ability; demonstrate exemplary oral
communication skills; possess well-developed personal computer skills.
Applicants should possess a genuine interest in working with cases
involving criminal law and procedure, constitutional law, evidence,
employment law, civil rights issues, federal jurisdiction questions,
challenges to federal agency decisions, and prisoner post-conviction
relief issues; and be proficient with West Law and Lexis. Application
packages must include the following items: a current résumé a certified
copy of your law school transcript, an unedited writing sample, and the
names, addresses, and telephone numbers of at least 3 references having
first-hand bases for evaluating your aptitude for the court's work. Send
to: Carolyn S. Neal, Personnel Officer, Office of Staff Counsel, 600 East
Main Street, Suite 2200, Richmond, VA 23219-2441. Tel. (804) 916-2900. To
receive full consideration, completed application packages must be
delivered to the Personnel Officer by Friday, September 22, 2000.
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