In recent years, one particular area of focus for legal scholars concerned about the increasing privatization and opacity of courts has been the issue of systematic unpublication of judicial opinions by the appellate courts. Judges have issued dueling opinions on the constitutionality of the practice and traded polemics on its appropriateness. Practitioners – whose voices often seem lost (or at least muted) on issues like this – are in the thick of the debate. No longer merely academic, this debate has even spawned a change in the rules of appellate procedure (one that amusingly pulled off the difficult feat of being both highly controversial and relatively minor).
Unfortunately, amid all of the talk about unpublication by appellate courts and the larger issues of accessibility, accountability and transparency that it raises, unpublication in the district courts — more than 95% of opinions go unpublished – has escaped the notice and consternation of scholars. I say “unfortunately” because this practice seems to raise at least as many, and likely more, problems as the unpublication practices in the appellate courts.
In this Article, I address the issue of unpublication in the district courts from a normative perspective for the first time. I draw from the rich parallel literature regarding appellate court publication practices, but argue that unpublication in the district court context raises an even broader set of concerns. My argument rests on two fundamental points. First, district courts play a unique institutional role in our system of adjudication, one that gives district judges exceptional power to make and shape the law. Indeed, from the perspective of a realist, district judges have even greater control over the law than do their appellate counterparts, yet they often operate free from appellate oversight and public scrutiny. Second, in contrast to the appellate context, where even “unpublished” opinions are usually available for public review, in the district court context, “unpublished” opinions almost disappear. Thus, the law in the district courts--the central location of lawmaking in our system--is rendered opaque, and our district judges unaccountable.
My argument proceeds as follows. In Part II, I begin by exploring the institutional role of the district courts and arguing that district judges, in a legal realist sense, make the law. In Part III, I define my terms “unpublished” and “opinions” for the district context, and provide an overview of the publication process in the district courts. Next, in Parts IV and V, the heart of this Article, I examine the troubling implications of the practice – what I term the “transparency” and “accountability” problems, respectively – and then argue that the justifications for unpublication are overstated, unconvincing and anachronistic. Finally, in Part VI, I argue that existing technology allows us to move beyond this problem and briefly explore how, from a practical standpoint, current practices could be reformed.
Levin, Hillel Y., "Making the Law: Unpublication in the District Courts" (2008). Scholarly Works. Paper 540.