Non-Publication Erodes Stare Decisis
- If justice is to be dispensed even-handedly, similar cases must be
- Ad hoc jury decisions that yield unexplained verdicts reflect the
self-contained values our jury system embraces. But appellate
adjudication performs a different function and creates different
expectations. The core function of appellate courts is to assure that
legal principles derived from the Constitution, statutes and, in the
case of state courts, the common law are applied correctly and
- Stare Decisis requires that a prior decision be followed in
subsequent cases unless it is distinguished or overruled,. The
application of the doctrine usually turns on a determination of the
identity between two cases -- a determination that cannot be made unless
the facts and reasoning of the prior case are known.
- A published opinion enhances predictability. Even if the opinion and
does no more than restate existing legal doctrine, it to show how the
doctrine applies to different facts. Publication thus increases
certainty by increasing the stock of precedents.
- First, the weight of precedent on a point of law hardens it, making
it more difficult to overturn. The sheer number of affirmations allow
attorneys to rely on the stability of a doctrine with greater
- Put a different way: a court can ignore one inconvenient precedent;
it rarely ignores a dozen.
- Second, later cases help flesh out a precedent, and help to make it
- Third, the sheer accumulation of a number of seemingly routine
decisions on a particular point of law may suggest to the courts, legal
practitioners, scholars, the legislature, or the public that problems
exist in this area. This may set in motion reform.
- Fourth, publication furthers an important institutional goal:
maintaining the appearance that justice has been done. Publication is a
signal to litigants and observers that court has nothing tied, that the
quality of its work in a case is open for public inspection.
- The core values of Stare Decisis are stability, certainty,
predictability, consistency, and fidelity to authority.
STARE DECISIS AS A QUALITY CONTROL MECHANISM
- Stare Decisis, at its heart, is a quality control mechanism, raising
all error for discussion and correction.
- Stare Decisis guarantees a consistent level of quality, consistency
or reasoning in the law and application of the law.
- Stare Decisis guarantees that all judges will meet the standards of
the most conscientious of their brethren. As such, it raises the quality
of law and judicial functions.
- Public awareness of Stare Decisis encourages the continual inspection
of the law and participation in the legal process by the public.
THE EROSION OF STARE DECISIS
- Conversely, erosion of Stare Decisis creates chaos. It robs even
experienced lawyers of the ability to predict with reasonable certainty
the outcome of litigation. This inevitably raises the cost of the legal
system and lowers its legitimacy.
- Erosion of Stare Decisis creates random results that inundate the
appellate courts. Citation of unpublished cases, conversely, would
permit lower courts (and potential litigants themselves) to have access
to precedents that would clearly decide cases or head off litigation.
- Stare Decisis is not threatened by a proliferation of lawsuits: We
have more lawsuits and more appellate rulings these days because our
country has more people and more laws and, for those reasons, we have
more judges and more lawsuits.
- Non-publication diminishes Stare Decisis twice: first, the decision
itself is freed from the responsibility to reason within the full view.
Second, an increment of precedent is rendered unusable.
- Once an "unpublished" opinion is included in a computer
database, it is de facto published.
- A lawyer cannot meet his obligations to his client if relevant
precedent, as he understands it, is kept from him.
- It is equally unfair to gag a litigant who wants to advise a Court of
Appeal that the issue which he now presents for adjudication has already
been passed on, and with what results.
- When a court undertakes to write an opinion to explain why it decided
the case as it did, it creates a reasonable expectation, under the
respect we accord to precedent, that similar issues will be treated
judicially in the same manner in the future.
- The `precedential importance' of an opinion cannot be predetermined
by its author. Rather, the attorney wishing to rely on the opinion in a
subsequent matter is in a better position to decide whether the opinion
is worth citing.
THE IMPACT OF NO-CITATION RULES ON STARE DECISIS
- "Do not cite" rules place off limits the very stuff of
precedent: the reasoning of the court and the explanation of why it
reached the results it did.
- "Do not cite " rules seem to be a statement by a court that
the reasons for its actions have no meaning or value. But if we do not
know why a court acts, our adjudicatory system will be reduced to a
series of irreconcilable ad hoc judgments.
- "Do not cite" rules create a serious risk that similar
cases will be decided dissimilarly.
- The appellate courts can hardly claim to be carrying out this
critical function when they prohibit parties to appeals from citing
precedent that is directly relevant to the issues they are presenting
for judicial resolution.
- Stare Decisis cannot operate as a workable doctrine as long the
courts, while adjudicating sets of identical facts, are able to reach
directly contrary results on diametrically opposed legal theories, by
the simple expedient of publishing one set of results but not the other.