56 STNLR 1435
56 Stan. L. Rev. 1435
(Cite as: 56 Stan. L. Rev. 1435)

<C>
                              Stanford Law Review
                                   May, 2004
 
                                   Articles
 
   *1435 INEQUITABLE INJUNCTIONS: THE SCANDAL OF PRIVATE JUDGING IN THE U.S.
                                    COURTS
 
                            Penelope Pether [FNa1]

 


                                       
Copyright (c) 2004 Board of Trustees of the Leland Stanford Junior University;


                                Penelope Pether


 


 
Introduction ....................................................... 1436

I. Origins and Current State of the Private Judging Practices ...... 1438

  A. Unpublication ................................................. 1442

    1. Origins...................................................... 1442

    2. The current state of unpublication........................... 1465

  B. Stipulated Withdrawal ......................................... 1474

  C. Depublication ................................................. 1479

II. The Case Against Private Judging ............................... 1483

  A. Rule of Law Problems with Private Judging ..................... 1483

  B. Inequality Effects of Private Judging on Marginalized Groups .. 1504

  C. Responses to Counterarguments ................................. 1515

III. Current Prospects for Reform .................................. 1528

Conclusion ......................................................... 1535

Appendix ........................................................... 1536

 
    *1436 "The scandal is such, and its evil effects are sometimes so         
irreparable, that the world seems to turn the wrong way . . . ." [FN1] 
    "Blindness to the supplement is the law." [FN2]
                                       
                                 Introduction
  Contrary to popular belief, the United States courts have not operated under
the system of precedent characteristic of common law legal systems since the  
1960s. Or perhaps it was the 1950s or the 1970s. The apparently peculiar [FN3]
U.S. doctrine of precedent was created by the scandalous practices of private 
judging [FN4] that are the subject of this article: "unpublishing,"           
"depublishing," and withdrawing judicial opinions.

  "Unpublication" is what happens to the vast majority of opinions issued by  
U.S. state and federal courts. In the federal appellate courts, for example,  
the rate of unpublication presently hovers just under eighty percent. [FN5]   
Unpublication *1437 means that an opinion is not designated for publication in
the jurisdiction's official reporter, if it has one; to a greater or lesser   
extent it makes the opinion difficult to find; it limits or destroys the      
precedential value of the opinion; and in most jurisdictions, citation to an  
unpublished opinion in documents filed in court or in argument is either      
banned or severely limited.

  "Depublication" involves a jurisdiction's highest appellate court stripping 
an opinion of an intermediate appellate court of precedential value without an
appeal to or hearing by the depublishing court, resulting in the opinion's    
removal from the jurisdiction's official reporter (if it has one), and its    
becoming more difficult to find than had it not been depublished.

  "Stipulated withdrawal" of judicial opinions occurs when parties settle     
litigation while an appeal is pending; the opinion from which the appeal has  
been taken is vacated and thus stripped of precedential value; the withdrawal 
of the opinion is a condition of settlement. Sometimes it is also reversed by 
the appellate court at the request of the parties. Once again, stipulated     
withdrawal makes an opinion difficult to find.

  I am uncertain when the earliest of these practices of private judging      
began, because some courts apparently privately decided to adopt some of the  
practices of private judging before they were mandated; my uncertainty is     
exacerbated because there are only partial records of the existing mandates.

  The official record suggests that the oldest of them, contemporary or       
institutionalized "unpublication," began in the 1970s. [FN6] There is ample   
evidence that contemporary unpublication began, at least in the United States 
Court of Appeals for the Fourth Circuit, in the 1960s. [FN7] There is some    
scattered evidence *1438 that suggests that contemporary unpublication        
happened in practice as early as the 1950s. It is in fact clear that--at least
in a significantly less systematized form--unpublication began earlier still; 
indeed, it has been a feature of the U.S. system of precedent since the       
inception of West's national reporter service. [FN8] Instead of following     
common law precedent as it is generally understood to operate, U.S. state and 
federal courts have adopted a group of rationalist procedures reminiscent of  
the codifying impulse that gave rise to the Restatements, which has moved U.S.
judge-made law away from its English common law roots and much closer to a    
naive version of the civil law system.

  These procedures, paradoxically (or perhaps necessarily) as haphazard as    
they are rationalist, give U.S. state and federal judges, and also, de facto, 
judicial clerks, staff attorneys employed by the courts, and (as in Colorado  
and New York) bureaucrats, power to declare judicial decisions of little or no
precedential value and in some cases either to make them disappear from the   
public record or to abort them. As indicated supra, they also typically       
command the bar not to cite them to the courts that have issued them or at    
least limit citation in more or less significant ways. Because of the ways in 
which they complicate judicial "independence," such practices invite          
comparison with the civil law practice of having judges take an investigative 
or prosecutorial as well as a decisional role; [FN9] this is particularly     
marked because of the ways in which the practices of private judging in the   
U.S. courts have had the *1439 systematic effect of disadvantaging the        
powerless, the marginalized, and the "one-shotter," of whom the paradigm in   
this instance is the pro se prisoner litigator or the "foreigner" who is a    
criminal defendant or subject of immigration proceedings.

  The courts of Australia, Canada, and New Zealand--all first-world western   
democracies with common law legal systems--have not (at least officially or   
yet) done anything like the U.S. courts have done. While only some of the     
opinions ("judgments") of the Australian, New Zealand, and Canadian courts are
included in official or unofficial reporters, this does not affect their      
precedential status, either de jure or, since the development of the          
widespread practice of courts routinely putting judgments online, de facto.   
While a comparativist study of the material practices of dissemination of     
various kinds of decisions made by courts in these countries is beyond the    
scope of this Article, troublingly, given my conclusions here, the Australians
are now considering adopting at least one of the U.S. practices of private    
judging in the so-called public courts: "unpublishing." In addition, I have   
uncovered some anecdotal evidence that suggests it is already silently being  
practiced in Canada; [FN10] and Britain recently followed the United States in
2001 by imposing a limitation on citation of judgments not included in the    
official reporters. [FN11] A significant difference between the British       
situation post-2001 and the United States is that courts do not control the   
decision whether a judgment will be included in the official reporters.

  This Article involves a critical analysis of the three main practices       
[FN12] of *1440 private judging developed in the U.S. courts-- contemporary   
unpublication, depublication, and stipulated withdrawal--and of the scholarly 
and judicial justifications and criticisms of them.

  Part I documents the origins of contemporary institutionalized unpublication
of opinions, stipulated withdrawal, and depublication, and describes the      
current state and volume of each practice. Its most significant contribution  
to the historical accounts of the development of contemporary                 
institutionalized unpublication, both the dominant and originary practice of  
private judging in the U.S. courts, is its drawing on both "private" and      
obscure evidence, not uncovered by earlier critics of or apologists for       
unpublication, that the United States Court of Appeals for the Fourth Circuit 
developed contemporary institutionalized unpublication as a reaction against  
appeals from marginalized litigants--prisoners appealing their convictions pro
se and civil rights appellants. This occurred at a time when U.S. law's       
constitutive history of excluding the nation's paradigmatic "others,"         
African-Americans, was forced to give way in the wake of (1) Brown v. Board of
Education [FN13] and (2) the deployment of equity jurisprudence developed     
jointly by a group of four judges on the United States Court of Appeals for   
the Fifth Circuit, the Kennedy Justice Department, and the activists and legal
strategists of the civil rights movement. This evidence suggests that         
contemporary unpublication theory and practice was first conceived by the     
United States Court of Appeals for the Fourth Circuit between 1956 [FN14] and 
1962, [FN15] with refinements made to institutionalized unpublication in the  
period from 1962 and 1968--precisely the period in which the "unlikely heroes"
of the United States Court of Appeals for the Fifth Circuit (Judges Elbert P. 
Tuttle, John Minor Wisdom, John R. Brown, and Richard Taylor Rives) and       
District Judges Frank M. Johnson, Jr., and J. *1441 Skelly Wright were        
developing the equity jurisprudence that would "flesh out Brown's mandate for 
equality and expand it beyond education . . . issu[ing] . . . landmark        
decisions that struck down barriers of discrimination in voting, jury         
selection, and employment." [FN16]

  Part II describes how, for reasons which include but are not limited to the 
fact that they sacrifice principled decisionmaking, [FN17] the practices of   
private judging in the courts imperil the legitimacy of the judicial system   
and thus the rule of law. Further, it demonstrates that there is credible     
evidence of the tendency for the practices of private judging to corrupt the  
operation of the courts and the administration of justice, and that placed in 
contexts the justifications currently advanced for the practices are both     
impoverished and often based on misleadingly partial and inaccurate data. I go
on to argue that just as contemporary institutionalized unpublication, the    
paradigm of the practices of private judging, replaced legalized racial       
discrimination as a structural means for U.S. "common law" to exclude "others"
from its protection, to resist their calls for justice or equity under law,   
and thus to subordinate them, so the other practices of private judging       
operate in similar ways. And their effects are often cumulative. [FN18]       
Building on the insight that the practices of private judging have had the    
systematic effect of creating unequal opportunities for certain classes of    
litigants already on the margins of U.S. society, [FN19] and following        
readings of Derrida's account of the "scandal," [FN20] I *1442 conclude that  
this exclusion of the other has become constitutive of contemporary U.S.      
"common law" since Brown I, by means of the institutionalization of the       
practices of private judging in the U.S. courts. Finally, Part II describes   
the justifications for each practice and, drawing on what we know about the   
material practices involved in the work of private judging in the courts,     
critically examines these justifications.

  Part III examines the flurry of recent activity directed towards changing   
the practices of private judging in the courts. It shows that recent          
suggestions by scholars that the practices of private judging--which are of   
crucial significance to the equitable development of the U.S. legal system--  
have ceased to be a problem are overly optimistic and that current reform     
proposals are likely to be ineffective. It suggests ways in which the         
institutionalization of the practices of private judging in the U.S. courts   
can be effectively reformed.

  The Appendix documents the unpublication, depublication, and citation       
restriction rules and practices of the U.S. states and the federal circuits.
                                       
         I. Origins and Current State of the Private Judging Practices
 
A. Unpublication

  1. Origins. The Public Story. The public story is that the first initiative 
toward unpublication of federal court opinions came from the Federal Judicial 
Conference in 1964, [FN21] which (1) expressed concern about "the rapidly . . 
. *1443 growing number of published opinions . . . and the ever-increasing    
practical difficulty and economic cost of maintaining accessible private and  
public law facilities" [FN22] and (2) recommended that federal judges publish 
only those opinions "of general precedential value." [FN23] This              
recommendation was perceived to be unsuccessful in achieving a reduction in   
the numbers of published opinions. [FN24] In 1972, the Conference required    
every federal circuit to prepare "publication plans" restricting the reporting
of opinions; [FN25] and it was not until 1974 (or 1976) that contemporary     
institutionalized unpublication purportedly began, either as a result of the  
"publication plans" providing mechanisms for institutionalized unpublication  
being implemented in all circuits by 1974 [FN26] or as a result of a          
recommendation from the Commission on *1444 Revision of the Federal Court     
Appellate System that "citation and publication restrictions . . . be adopted 
to deal with caseload volume . . . ." [FN27]

  Historical justifications for the practice of "unpublishing" opinions turned
on competing discourses of crises that were said to beset the federal         
judiciary in the 1960s and 70s. Judges represented the volume of book-bound   
precedent as overwhelming. [FN28] This claim, together with the contemporary  
technological problems of meaningfully indexing courts' law libraries,        
grounded the dominant and (relatively) legitimate discourse of crisis         
articulated by unpublishing's apologists.

  Later, efficiency became the dominant justificatory discourse. In 1975 the  
Commission on Revision of the Federal Court Appellate System (the "Hruska     
Commission"), endorsing the proposition that there were "library cost savings"
to be had from limited publication, suggested that unpublication could save   
judicial time, because "the judges no longer sense the same need to polish the
prose and to monitor each phrase as they do with opinions which are intended  
for general distribution." [FN29] The discourse of efficiency sits uneasily   
and side-by-side with the increasingly elaborate argument that only certain   
classes of cases merit or produce opinions that are "precedential."

  Unpublication's "other scene" is private judging's private history, a       
discourse of dismay and irritation at the volume of appeals emerging from     
civil rights litigants and prisoners making pro se postconviction appeals.    
[FN30] In 2001, Judge McKeown of the United States Court of Appeals for the   
Ninth Circuit spoke in a public forum, a panel discussion of legal authority  
at the annual meeting of the Association of American Law Schools, of the      
"private history" of the practice of unpublication. [FN31] Judge McKeown's    
thesis was that the *1445 development of contemporary unpublication derived   
not only from the overt cause, the difficulties of indexing law libraries     
because of the volume of opinions issuing from the federal courts, [FN32] but 
from the federal judiciary's anxiety about floods of civil rights and pro se  
prisoner postconviction appeals litigation in the 1960s. [FN33] None of the   
published discussion of unpublication documents this genealogy; however, there
is a critical piece of documentary evidence that substantiates it.

  In Jones v. Superintendent, Virginia State Farm [FN34] ("Jones No. 2"), the 
Fourth Circuit opinion that documents unpublication's secret history, the     
court's effort to justify its screening of pro se prisoner postconviction     
appeals into the nonargument and unpublication tracks is rhetorically fraught 
with justificatory arguments for "solutions" to problems that its own novel   
institutionalized unpublication practices had created, rather than advancing  
justifications for unpublication on technological grounds. It also blames     
precedent volume, but limits it to a particular class of precedent: pro se    
prisoner appeals.

  The dominant contemporary justification for unpublication, articulated most 
notably by the Ninth Circuit's Judge Kozinski but partially foreshadowed by   
Jones No. 2, is the judges' incapacity to produce "publishable-quality"       
opinions in all cases because of workload. [FN35] Jones No. 2, like some other
revisionist histories of the reasons for contemporary institutionalized       
unpublication, also blames (1) the inadequacies of the research skills of the 
bar, [FN36] and (2) unequal access to unpublished opinions. [FN37]

  Jones No. 2. Jones was a prisoner, convicted in 1952 of robbery and         
felonious shooting, [FN38] who had sought and been granted an order by a trial
court *1446 that the Superintendent of the Virginia State Farm, where he was  
incarcerated, produce to him the transcript of his criminal convictions and   
state collateral proceedings, the latter a 1968 state habeas corpus action.   
[FN39] The Superintendent, represented by the Virginia Commonwealth Attorney's
Office, successfully appealed that order to the United States Court of Appeals
for the Fourth Circuit. [FN40] That opinion, Jones No. 1, was published. In   
it, the Fourth Circuit Court of Appeals reversed the District Court order     
requiring the Superintendent to give Jones the habeas transcript, which was   
the only transcript in existence; there were not even notes of the evidence at
Jones' trial. [FN41] The Court's reason for denying Jones the habeas          
transcript was that he had not demonstrated a need for it that was cognizable 
by the court.

  Jones filed a petition for rehearing on the basis that in an unpublished    
opinion in Knight v. Coiner, [FN42] another panel of the Fourth Circuit Court 
of Appeals had held, as the Jones No. 2 court put it, that "there is a        
constitutional obligation on the states to furnish free to indigents trial    
transcripts for purposes of collateral attack absent a showing of need . . .  
at least where a transcript was in existence and possessed by the state or by 
petitioner's attorney." [FN43] The Jones No. 2 court denied the petition for  
rehearing, sought in differing ways to account for the conflicting precedent  
about a prisoner's right to transcript in Knight and Jones No. 1, and in both 
the opinion and its remarkable appendix sourced the court's "apparent         
disregard of precedent" [FN44] in its development of contemporary             
institutionalized unpublication.

  Before I move to the main framework of my analysis and critique of the U.S. 
practices of private judging, I want to undertake a detailed critical textual 
analysis of Jones No. 2, the seminal opinion on the subject of contemporary   
institutionalized unpublication. That analysis reveals the discourses about   
courts and the ways they should treat litigants on the margins of society that
impelled the development of contemporary institutionalized unpublication      
doctrine.

  Apart from mere historical priority, why is Jones No. 2 so significant? One 
answer is that it provides the only presently publicly available evidence     
supporting Judge McKeown's revelation about the "private history" of          
contemporary unpublication: That it was developed in response to (some)       
federal judges' perception that they were being overwhelmed not generally by  
workload but specifically by civil rights and pro se prisoner postconviction  
litigation, rather than only for the more benign, clearly historically        
accurate but, as I will go on to suggest, now largely unpersuasive reasons    
advanced publicly *1447 for the institutionalization of unpublication in the  
federal courts. The other answer--which goes to its originary                 
significance--can only be fully understood by examining the parallel histories
of (1) the implementation of Brown and (2) contemporary developments in       
prisoner litigation on habeas corpus and civil rights grounds, and the        
milestones in the development of contemporary institutionalized unpublication.

  Jones No. 2 is also especially historically significant for three reasons.  
First, it reveals a developed Fourth Circuit theory and practice of           
unpublication in the 1960s, beginning in 1962 with the generation of          
"protective procedures" to deal with the increase in postconviction prisoner  
appeals, which in Chief Judge Haynsworth's estimation had swelled from        
"relatively few" (in 1956-57) to "a burden." [FN45] These were developed under
the leadership of Chief Judge Sobeloff [FN46] and led to the preparation of a 
report by his successor, Chief Judge Haynsworth, to the Federal Judicial      
Center in 1968, [FN47] detailing the history and practices of the Fourth      
Circuit's "screening process" for postconviction appeals, including the       
disposition of them via "memorandum decision[s]," or unpublished opinions.    
[FN48] Next, it explicitly links unpublication to postconviction prisoner     
appeals and the processes developed by the Fourth Circuit to manage such      
appeals "in house," [FN49] with court staff rather than independent attorneys 
"representing" prisoners, hearings routinely dispensed with, and prisoners    
effectively appearing pro se, rather than with the assistance of              
court-appointed counsel. I will discuss the third reason for Jones No. 2's    
significance in detail infra--that the case, contemporary institutionalized   
unpublication's "first cut," [FN50] read rhetorically and in context, provides
evidence of some of the most troubling problems manifested in contemporary    
unpublication practice.

  Jones No. 2, then, is the earliest public record of the development of      
contemporary institutionalized unpublication practice; it provides direct     
textual evidence that judicial anxiety about postconviction appeals led to the
structural proliferation of unpublication, and that an ex post facto account  
of the Fourth Circuit's innovations in limiting prisoner appeals and          
designating opinions arising from them as "memorandum" or "unpublished" was   
transmitted on paper to the Federal Judicial Center in 1968. The Circuit's    
then Chief Judge, however, had implemented large-scale unpublication in 1962, 
two years before *1448 the Federal Judicial Conference first advised federal  
courts to limit the production of published opinions. The public record does  
not yield direct evidence that would substantiate the second limb of Judge    
McKeown's claim about the "secret history" of unpublication: that it was the  
fruit of judicial anxiety about civil rights appeals as well as those by      
convicted prisoners. Chronological analysis provides indirect evidence of this
connection and suggests that archival research might yield direct evidence in 
support of this thesis.

  In 1954, the Supreme Court decided Brown I; Brown II followed in 1955;      
Griffin v. Illinois, [FN51] the first of a series of equal protection cases   
dealing with fairness in criminal procedure, which held that a state must     
furnish an indigent criminal defendant with a free trial transcript or its    
equivalent if necessary for adequate and effective appellate review of the    
conviction, followed in 1956. In 1957 it was followed by the first Civil      
Rights Act of the twentieth century. That statute was succeeded by the Civil  
Rights Acts of 1960 and 1964.

  In 1963, Gideon v. Wainwright [FN52] established an absolute right to       
counsel for indigent defendants in all serious criminal cases. That same year 
the Supreme Court held that a state must appoint counsel for an indigent for  
the first appeal, granted as a matter of right after a criminal conviction.   
[FN53]

  In 1964 the Court held that prisoners could use Section 1983 of U.S.C. Title
42, a Civil Rights provision, to file a civil rights suit. [FN54] In 1969,    
states were prohibited from preventing prisoners assisting each other in      
preparing habeas corpus actions, [FN55] and in 1974 the Court held that       
inmates could not be prevented from helping each other prepare civil rights   
actions. [FN56] In 1971, indigents' right to transcript or its functional     
equivalent was extended to all criminal cases, not just those carrying        
imprisonment as punishment. [FN57] It was not until 1974 that the Supreme     
Court began to circumscribe the rights of indigent criminal defendants in     
cases of discretionary or collateral appeals. [FN58] Two years later, in 1976,
the Supreme Court confirmed its reversal of the civil *1449 rights trajectory 
begun in Brown I. [FN59]

  Links emerged in these cases between appeal rights and civil rights for     
prisoners. At the same time, and while the Fourth Circuit refined its         
rights-denying jurisprudence in the various ways documented in Jones No. 2,   
the Fifth Circuit was implementing Brown in its emergent desegregation        
jurisprudence. In this area, too, the Fourth Circuit acted in opposition to   
the direction charted by the Supreme Court. A critical example was the        
differing approaches the Fourth [FN60] and Fifth [FN61] Circuits took towards 
attempts by recalcitrant counties to evade Brown.

  Chief Judge Haynsworth's account is that between 1956/1957 and 1962, the    
pressure of postconviction appeals became so heavy on the Fourth Circuit that 
it conceived its doubled institutional practice of ceasing to provide         
prisoners appealing convictions with independent legal representation and     
"unpublishing" the majority of the decisions emerging from these circumscribed
appeals. [FN62] My detailed critical analysis of Jones No. 2, infra, shows how
the Fourth Circuit fashioned the prisoners' rights-expanding transcript       
jurisprudence of the Supreme Court in the 1950s and 1960s into the            
rights-denying jurisprudence of Jones No. 2, which both documented and        
mandated the extension of limited rights to convicted prisoners: Not only were
their rights to transcript for the purposes of prosecuting appeals limited,   
but so was their access to representation on postconviction appeal; further,  
unpublication doctrine stripped decisions favorable to prisoners' rights of   
precedential value and gave it to decisions limiting those rights. Those      
limitations ran directly counter to the Supreme Court's decisions on provision
of transcript and on indigents' rights to counsel in criminal cases.

  Let me turn now to the larger significance of Jones No. 2 in the context of 
*1450 the development of contemporary unpublication theory and practice. Jones
No. 2 is cited in In re Rules of the United States Court of Appeals for the   
Tenth Circuit, adopted November 18, 1986 ("Rules of the Tenth Circuit"),      
[FN63] itself a significant artifact of the history of unpublishing, which I  
will discuss in detail infra. The judges in Rules of Tenth Circuit--          
dissenters in a years-earlier and hitherto unpublished dissent to a rules     
adoption decision--suggested obliquely that the institutionalization of       
unpublication by the Fourth Circuit, documented in Jones No. 2, might         
contravene constitutional guarantees of due process and equal protection and  
that unpublication might be ultra vires Article III judicial power.

  There is more to be concerned about in Jones No. 2 than the multiple        
potential grounds for unconstitutionality apparently discerned by three Tenth 
Circuit dissenters. The reading of Jones No. 2 against the context of the     
precedent the opinion adduces discloses evidence that the origins of          
contemporary institutionalized unpublication lie in an assertively            
rights-denying jurisprudence of a circuit proceeding contrary to the course   
being charted by the Supreme Court. This evidence suggests historical reasons 
for the types of litigants and other subjects of the legal process who, as    
anecdotal [FN64] and scholarly evidence suggest, are characteristically and   
disproportionately affected to their disadvantage by unpublication and the    
other practices of private judging in the U.S. courts.

  As indicated supra, Jones No. 2 was brought on behalf of a prisoner, a      
member of a class of litigants particularly significant in the history of     
unpublished opinions. While this prisoner was represented by court-appointed  
counsel at the appellate and postappeal phase of the matter, at the trial     
stage of these proceedings he apparently acted pro se. This makes him         
paradigmatic of the group of prisoner-litigants whose importuning (together   
with that of civil rights plaintiffs) assailed the federal courts so much that
the contemporary institutionalized practice of "unpublishing" opinions, one of
the three practices of private judging with which this article is concerned,  
was developed. [FN65]

  *1451 Having been denied the transcript he sought by the Fourth Circuit on  
the first appeal, Jones filed a petition for rehearing, and the Court of      
Appeals opened the opinion denying the request for rehearing in this way: 
    This excellent petition for rehearing is deserving of our most careful    
attention. Not only is the petitioner entitled to a complete explanation of an
apparent disregard of precedent, but so also is the bar, and we are grateful  
to able and persistent counsel for affording us a longawaited opportunity to  
explain to the bar and to the public some of our internal procedures in the   
disposition of what has become an enormous annual caseload. [FN66]

  The tone of the opinion denying the petition for rehearing shifts as the    
court discusses Knight, the unpublished precedent that is not to be treated as
precedent. Its factual account of those proceedings is revealing, suggesting  
to readers inclined towards legal realism a reason why the Knight petitioner, 
who got the order and presumably the transcript he sought, might have received
the assistance of the court, and the Jones petitioner, who did not, was       
condemned to a Kafkaesque round of litigation which might leave him as        
unrelieved if he undertook it as if he did not. According to the Jones No. 2  
court, the Knight prisoner-petitioner "had made numerous attempts to obtain a 
copy of the transcript of state court proceedings from his attorney at the    
time, or, in the alternative, a new copy at state expense." [FN67]

  Later, the court characterizes the legally preferable response to the one it
actually made to the Knight petitioner's quandary in this way: "instructing   
the district judge on remand to initially pursue other remedies, i.e.,        
dislodging the transcript from the possession of counsel, or abstaining in    
favor of action by a state court." [FN68] The court remarks that Knight's     
counsel "somewhat incredibly  . . . insisted on retaining it against the      
interest of his former client." [FN69] Just as these quotations suggest the   
circumstances that might have led another panel of the United States Court of 
Appeals for the Fourth Circuit to favor Mr. Knight, they also suggest why the 
same court here might recommend procedural circumlocution--a likely wild-goose
chase in search of a transcript--that might try the patience of any litigant, 
even one who was spared the rigors of incarceration. Simply put, if we accept 
that courts have discretion in the ways *1452 in which they interpret and     
apply the law, we might conclude that, probably through no fault or merit of  
his own, Mr. Knight was capable of being characterized as a more sympathetic  
litigant than Mr. Jones. We might also conclude that some judges are prone to 
legalism and others to embrace the possibilities of interpretability.

  In any event the Jones No. 2 court reaches a quite different conclusion from
these, which is that it was not quite wrong in Knight--a decision that is not 
only unpublished, but so extraordinarily difficult to recover that, were it   
not for extreme persistence on the part of a reference librarian and a        
research assistant, the opinion would have been beyond the prying eyes of at  
least this scholar [FN70] except for the three teasingly brief quotations from
it by the Jones No. 2 court. [FN71]

  The court concludes that in Knight it misread the United States Supreme     
Court in Wade v. Wilson, [FN72] rather than getting it spectacularly wrong,   
and as a result the Knight opinion was neither "carefully reasoned" nor "fully
expostulated." [FN73] Specifically, it says that in Knight it "commented that 
the Supreme Court has 'required that judicial action be taken to aid the      
prisoner in acquiring the transcript' where one exists." It continued, "But we
failed to note what kind of judicial action, and that the Supreme Court had   
specifically declined to decide 'whether there are circumstances in which the 
Constitution requires that a State furnish an indigent state prisoner, free of
cost, a trial transcript to aid him to prepare a petition for collateral      
relief."' [FN74]

  The court went on to say: 
    Instead, unnoticed by us in our memorandum decision, the Supreme Court had
suggested that the district court on remand should abstain from granting      
federal relief until other possibilities of obtaining a copy of the           
transcript, whether borrowing one from his codefendant or the state, or       
successfully applying to a state court, had been exhausted. . . . It is thus  
apparent that our decision in Knight, . . . whether right or wrong, was not a 
carefully reasoned or fully expostulated one. We followed Wade, . . . but we  
did not track it closely. Instead of instructing the district judge on remand 
to initially pursue other remedies, i.e., dislodging the transcript from the  
possession of counsel, or abstaining in favor of action by a state court, we  
authorized him in the alternative to obtain the transcript either from the    
state clerk's office or from counsel, who, somewhat incredibly, insisted on   
retaining *1453 it against the interest of his former client.

  In the opinion in the instant case, 4 Cir., 460 F.2d 150 . . . we did a     
better job. We went back beyond Shoaf, . . . to United States v. Glass . . .  
and relying on Lane v. Brown . . . made it perfectly clear that in this       
circuit "when a need for a transcript in order to collaterally attack a       
conviction is shown, equal protection and due process require the state to    
furnish an indigent prisoner such transcript without charge." We announced    
what seemed to us a proper corollary of that proposition: "the state may      
constitutionally decline to furnish an indigent with a transcript until a need
for it is shown, even though a transcript is already in existence." [FN75]

  Reading Jones No. 2 against the contexts of these self-proclaimed           
precedents, it is difficult to sustain the court's contention that the Knight 
v. Coiner court was neither right nor wrong, but rather blind to nuance. There
are three reasons for this. First, there is simply nothing in the text of the 
majority opinion in Wade that suggests that the Supreme Court did anything    
like "require[] . . . that judicial action be taken to aid the prisoner in    
acquiring the transcript." [FN76] Rather, it is clear that attempts to obtain 
a transcript were to be left in the prisoner's hands. Indeed, the Jones No. 2 
court's reading of the decision as standing for the proposition that "the     
district court on remand should abstain from granting federal relief until    
other possibilities of obtaining a copy of the transcript, whether borrowing  
one from his codefendant or the state, or successfully applying to a state    
court, had been exhausted" [FN77] itself seems a considerable over-reading of 
Wade. Rather, the Supreme Court refused to reach the question of whether      
granting relief in these circumstances was something the Constitution         
required. [FN78] There is, of course, in such cases, significant moral suasion
proceeding from a Supreme Court opinion in which it refuses to reach a        
constitutional question because less drastic solutions to a problem are       
available. Such moral suasion might lead state authorities--including state   
courts--to make their best efforts to make a transcript available. There is   
encouragement for them to do so because if they do not, the matter would      
likely be relitigated, and such relitigation might result in future           
constitutional burdens on those same state authorities.

  Second, while the Knight Court did not exactly "answer[] affirmatively,"    
[FN79] as the Jones No. 2 court claimed it did, that "there is a              
constitutional obligation on the states to furnish free to indigents trial    
transcripts for the purpose of collateral attack absent a showing of need,"   
[FN80] the Knight court is manifestly and comprehensively wrong in its        
interpretation of Wade; thus the claim that its interpretation of Wade was    
insufficiently nuanced lacks credibility.

  *1454 As already noted, in Wade v. Wilson [FN81] the Supreme Court did not  
in fact reach the question of whether in cases where indigent prisoners seek  
transcripts of proceedings for the purposes of filing petitions for what the  
courts writing on this topic call "collateral relief," that is, habeas        
proceedings (federal or state) on the basis of constitutional challenges to   
convictions rather than direct appeals, states are constitutionally required  
to provide them with it. In Wade, [FN82] in an unreported opinion, the federal
district court had ordered that the prisoner get his free transcript, because 
"although there is no square holding on the precise question of the right to a
transcript in preparing a petition for a writ of habeas corpus rather than an 
appeal the logic of the Supreme Court holdings compels a finding that such a  
right exists." [FN83] The United States Court of Appeals for the Ninth Circuit
reversed on what will come to readers of this narrative to be familiar        
grounds: The prisoner, Wade, did not make a claim of error; rather, in the    
Ninth Circuit's pungent characterization, he was "demand[ing] a transcript    
merely to enable him to comb the record in hope of discovering some flaw."    
[FN84]

  Wade's argument to the Supreme Court that "it may not be possible to        
pinpoint . . . alleged errors in the absence of a transcript" [FN85] has a    
certain appeal. However, in an unexceptionable show of jurisprudential        
reluctance to reach a constitutional question, the Supreme Court was not      
prepared to articulate a constitutional right to a transcript in circumstances
where the petitioner had had considerable success on direct appeal in         
borrowing a copy of the transcript. [FN86] They remanded the matter to the    
district court, directing it to retain the case on its docket "pending        
petitioner's efforts to obtain access to the original or a copy," indicating  
that once this had occurred the matter should be dismissed. [FN87]

  The decision contains a strongly worded dissent by Justice Black, which is  
noteworthy because it unselfconsciously manifests the tone that repeatedly    
occurs in judicial pronouncements on the assaults on the calm and orderliness 
of their office by pro se prisoners who have nothing better to do with their  
time than, indeed, to comb transcripts seeking meritless grounds of collateral
appeal. The dissent opens by noting that the petitioner and his coaccused were
convicted of murder and that he unsuccessfully appealed that conviction;      
[FN88] it goes on to note: 
    There certainly is no constitutional requirement that a State must        
continue *1455 to supply convicted defendants trial records to enable them to 
raise the same old challenges to their convictions again and again and again. 
There is not a word or a suggestion in the whole record in this case that . . 
. even intimates that any new events have occurred since petitioner's 1961    
appeal which could under any possible circumstances justify even a shadowy    
argument that petitioner was not guilty of the murder he was convicted of     
having committed. [FN89]

  It concludes its reasoning as follows: 
    Petitioner has not raised any claims which indicate in the slightest that 
he has been convicted of a crime of which he is innocent. At the most he has  
asserted a desire to review the record to find some technical legal point     
which he can argue to a court as a basis for release from confinement. He has 
already had one chance to make such arguments on direct appeal, and he lost   
that battle. I do not think he needs a transcript to know whether he was      
convicted erroneously or whether some new circumstances have arisen that now  
show a fatal constitutional error . . . . This case is but another of the     
multitudinous instances in which courts are asked interminably to hash and    
rehash points that have already been determined after full deliberation and   
review. [FN90]

  Like Jones, Knight was a prisoner, this time one serving a life sentence for
first-degree murder. [FN91] He sought a certificate of probable cause to      
appeal a federal district court order dismissing his federal habeas petition. 
Granting the certificate of probable cause on only one of the four grounds on 
which it was sought, that he was denied equal protection in being refused a   
free copy of his trial transcript by the West Virginia courts after an        
unsuccessful appeal and equally unsuccessful state habeas petition, the court 
of appeals remanded the matter to the district court. It based its decision on
the fact that a transcript was in this case already in existence, which, it   
implied, differentiated it from Shoaf. [FN92] As noted above, the Knight court
is, however, completely wrong when it cites Wade v. Wilson as authority for   
the proposition that "[w]here a transcript exists, the Supreme Court and this 
Circuit have required that judicial action be taken to aid the prisoner in    
acquiring the transcript;" interestingly, there is no pinpoint citation to    
Wade. [FN93] The Fourth Circuit case Knight cites together with Wade as       
authority for this proposition, Davenport v. Morrison, [FN94] *1456 is also   
unpublished--I have yet to locate a copy, and I await its eventual arrival,   
should I prove successful, with some avidity.

  The third reason that it is difficult to believe the Jones No. 2 court's    
contention that the Knight v. Coiner court was neither right nor wrong is that
in the first Jones case, Jones No. 1, [FN95] decided after Knight v. Coiner,  
the United States Court of Appeals for the Fourth Circuit explicitly made new 
law in the spirit of what the court's selective quotation suggests was the    
circuit's exasperated attitude towards pro se prisoner litigants in United    
States v. Glass, [FN96] from which it quoted as follows: "An indigent is not  
entitled to a transcript at government expense without a showing of the need, 
merely to comb the record in the hope of discovering some flaw." [FN97] The   
Jones No. 1 court articulated new due process and equal protection            
jurisprudence when it held that where "no need [for a transcript] is shown,   
there is no constitutional right to a transcript, regardless of how easily and
inexpensively the state could furnish it." [FN98]

  It had other choices, as the consigning to a footnote of the admission that 
"[t]hus far the Supreme Court has specifically declined to decide this        
question [of a prisoner's right to a transcript absent a showing of need, even
when it could be cheaply and easily provided by the state]" [FN99] suggests.  
The footnote continues as follows: 
    We are aware of the moral, if not constitutional problem inherent in a    
system of court reporting normally paid for, in part at least, by litigants   
and the disparity of monetary ability to buy an expensive transcript. The     
problem goes beyond fairness and monetary considerations and seriously        
involves the efficient functioning of the courts. [FN100] Here we see a court 
denying the force of an insight it cannot avoid--denying that there is a      
problem in a publicly funded judicial system assisting the rich and           
disadvantaging the poor--and concluding that this merely raises questions of  
"efficiency." This is in a nutshell the attitude taken by the courts to the   
process of unpublication: Claims, no matter how contestable, for efficiency in
the operation of the courts are heeded more than persistent questions about   
the *1457 fundamental fairness of private judging inside the soi-disant public
courts.

  If we read Jones No. 1 against the context of precedent it directly and     
indirectly [FN101] adduces, we see that given a choice about how to make law  
about treating indigent prisoners who applied for transcript for the purpose  
of making collateral appeals the Fourth Circuit treated prisoners favorably in
its unpublished opinions and unfavorably in its published opinions. It also   
shows how highly selective use of precedent was repeatedly made by the Fourth 
Circuit--in both Jones cases and in Shoaf--to claim authority for negative    
treatment of indigent prisoners in these circumstances in counterintuitive    
ways: The United States Supreme Court and Fourth Circuit cases Jones No. 1 and
2 directly and indirectly cite repeatedly find in favor of prisoners and deal 
critically with examples of the phenomenon of unethical or patently unfair    
treatment of indigent prisoner litigants by the legislative, executive, and   
judicial branches of government. [FN102]

  Some of the most persistent claims for the fairness of unpublished opinions,
which emerge in Jones No. 2 in the context of other material practices        
relating to the differential handling of pro se prisoner appeals, critically  
depend on the credibility of the Jones No. 2 opinion. Even more damaging to   
that credibility than the precedential history it constructs for itself is    
what, read *1458 against the context of the Appendix to the opinion, it       
curiously and perhaps disingenuously characterizes as a "deliberate failure"  
to mention Knight v. Coiner in Jones No. 1. The Jones No. 2 court says of that
earlier decision that "although we deliberately failed to mention" it, "we    
effectively overruled it." [FN103] It goes on to register that Jones had asked
them to do two critically important things--"secure uniformity of decisions of
this court" and "settle a question of far reaching importance: the status of  
precedent to be accorded an unpublished memorandum decision of this Court."   
[FN104]

  Taken together, analysis of the quality of the reasoning in both Jones      
opinions, and the evidence the Appendix to the second, discussed infra,       
provides about both the role of nonjudicial actors in the exercising of       
judicial power and the absence of independent practitioner scrutiny, suggest  
that there is little reason to trust the court's claim about its deliberate   
failure to mention Knight. The Jones No. 2 court admits the problem of unequal
access to unpublished opinions. Its two main justifications for the practice  
of unpublishing and its corollary, the denying or severely circumscribing of  
the precedential value of opinions by restrictive citation rules, are as      
follows: (1) "[Memorandum opinions] are unpublished and generally unavailable 
to the bar, [and thus] access to them is unequal and depends upon chance      
[FN105] rather than research," and (2) "memorandum decisions are not prepared 
with the assistance of the bar." This latter justification, together with the 
extraordinary Appendix to the Jones No. 2 opinion, reveals that the origin of 
the Fourth Circuit's contemporary unpublishing practice was what some judges  
perceived to be the "problem" of burgeoning pro se postconviction prisoner    
appeals.

  The Jones No. 2 court first seeks to justify its practice of unpublishing   
opinions in pro se prisoner postconviction appeals by pointing to the         
disadvantage it finds itself at when counsel do not appear in cases: 
    No appellate court can ever be much better than its bar. The bar of our   
court is the source of the raw material with which we work: facts, inferences,
ideas, insights, and prior decisions, the stare decisis effect of which is now
so forcibly called to our attention. But we cannot always use the bar . . . . 
[FN106] It goes on to suggest that the bar's inadequacies, for which the bar  
itself is presumably responsible (in contrast to the court's own admitted     
inadequacies, which it has just, by inference, laid at the foot of the bar),  
are another reason for this practice: "[I]f we were to attempt [to use the bar
in pro se prisoner postconviction appeals], we think the bar could not        
possibly respond to our increased demands upon it with the degree of quality  
needed." [FN107]

  At this point the court makes another internally contradictory set of *1459 
statements: [FN108] "We believe that our screening procedures and disposition 
by unreported memorandum decisions accords with due process and our duty as   
Article 3 judges," immediately followed by "but we confess its imperfection." 
It is worth noting that "disposition" has no articulated object. The court    
does not say that its discourse on unpublished opinions relates here to only  
one kind of case: pro se prisoner postconviction appeals. That imperfection to
which the court refers is in reality the circularity by which the doctrine of 
precedent is done away with in postconviction pro se prisoner appeals. The    
court concedes that "any decision is by definition a precedent" but claims    
that it is "reasonable to refuse to treat [memorandum decisions, which by the 
court's definition are confined at this point in their history to pro se      
cases] as precedent within the meaning of the rule of stare decisis." [FN109]

  After this remarkable passage the Court notes, apparently for safety's sake,
that "although unmentioned" in subsequent published opinions with inconsistent
holdings, "it should be clearly understood by the bench and bar that any prior
memorandum decision in conflict with a subsequently published opinion is to be
considered overruled." [FN110] The court then goes on in the Appendix to give 
what it calls "the best explanation of our problem"--excerpts from Chief Judge
Haynsworth's 1968 report to the Federal Judicial Center on "screening appeals 
and related matters in the Fourth Circuit." The history starts in 1956 and    
1957, when every postconviction case saw a lawyer appointed to represent the  
prisoner, and a full hearing was conducted. The practice changed after 1962,  
when the numbers of these cases increased (the court indicates that in 1972,  
500 to 600 of the 1405 appeals filed with the Fourth Circuit were pro se      
prisoner appeals). It describes the steps taken by Chief Judge Sobeloff in    
1962 as "protective procedures," not only because of the increase in number of
pro se prisoner postconviction appeals but "from the fact that from experience
we had observed that a substantial proportion of them were frivolous." [FN111]
"Fact," judicial experience, and observation are here invoked as authority    
akin to judicial notice to substantiate the proposition that a "substantial   
proportion" of postconviction prisoner appeals are "frivolous." In fact, given
that as a result of the discourse reproduced in the Haynsworth Report all of  
them were to receive the same inferior process in the Fourth Circuit, the     
characterization of the proportion of them that is frivolous seems both       
disingenuously modest and obfuscatory.

  The Report then becomes explicitly self-justifying: 
    Their merit did not justify the attention they were receiving, and grave  
problems were being encountered in obtaining lawyers to handle . . . such     
cases. Lawyers find it a very frustrating experience to be appointed to handle
*1460 an appeal in which there is no merit and, if one seeks to withdraw after
accepting an appointment, a large amount of judicial time must be expended in 
handling collateral problems. [FN112]

  The text of the Appendix goes on to chart the history of the Fourth         
Circuit's attempts, under the leadership of Chief Judge Haynsworth's          
predecessor, Chief Judge Sobeloff, to find a satisfactory process for         
disposing of pro se postconviction appeals without the appointment of counsel,
without hearing, and via unpublished opinions: what the Report calls a        
"summary disposition procedure." [FN113] At every step in his justification   
the Chief Judge reveals his own consciousness of the inadequacy of these      
examples of "second class" access to the judicial system. He notes, "we were  
all concerned with the necessity of surrounding any summary disposition       
procedure with some safeguards." [FN114] First, a "young lawyer employed by   
the Clerk's office" undertook the screening of "postconviction and other pro  
se appeals." [FN115] (He also suggests that the class of matters dealt with by
summary procedures rapidly widened beyond the least meritorious category:     
"state prisoner habeas corpus appeal[s] in which no certificate of probable   
cause to appeal had been issued . . . ." [FN116]) The Report describes "a     
tradition against summary foreclosure of appeals by one judge, or even three, 
without a full explanation of the reason for the action taken." [FN117] Three 
judges examined the papers (presumably prepared by the aforementioned "young  
lawyer") to rule on frivolousness, which required a unanimous vote and which  
was memorialized, if such a description is merited, by a "memorandum order,   
which sometimes succinctly, but always adequately, stated the facts, the      
contentions, and the reasons for the conclusion that the appeal was           
frivolous." [FN118]

  Such is the nature of slippery slopes: Today we see the national            
proliferation of "table," "slip," or "memorandum" opinions which give no      
reasons for the court's "conclusion" about the case. [FN119] The next part of 
the Fourth Circuit's slippery slope towards institutionalizing differential   
treatment for different types of appellants in the 1960s and 1970s was its    
discovery that "we could do much more" to "screen" "purely frivolous" appeals.
Now they had "more assistance from better trained habeas clerks." As the      
volume of "frivolous" appeals swelled, so the protections for powerless       
appellants narrowed--the Chief Judge notes with some satisfaction that, "Now  
no *1461 postconviction case gets on our regular hearing calendar unless at   
least one judge is of the opinion that a full hearing would be of assistance  
in its disposition." [FN120] And a new category of appeals was consigned to   
the summary disposition track--"it was as easy to surface and summarily       
dispose of the cases which clearly required reversal as those in which there  
clearly was no merit at all." [FN121]

  The Haynsworth Report goes on to make claims for the "improved" procedures  
that accompanied the development of the summary disposition track. Prisoner   
appeals have "substantially improved" preparation: 
    If, for instance, the record does not contain the transcript of some prior
proceeding which may bear upon the issues, that transcript is obtained and    
incorporated in the record. Any other court record or document which should   
have been tendered in the trial court and incorporated in the record is       
obtained. [FN122]

  The first sentence of this passage is troubling for two reasons. First, it  
seems to suggest that any transcript of any proceeding that may bear, however 
tangentially, on the appeal is enough. Next, in the context of rights-denying 
law made around the denial of trial transcripts to indigent prisoners in      
postconviction appeals, it provokes incredulity: If they are available, as    
they were in Knight, why not provide them, as much of the argument for the    
expense of such a procedure seems undercut when they are already in existence?
What follows this passage, however, is genuinely disturbing.

  The final excerpts from the Haynsworth Report, which close Jones No. 2,     
juxtapose two distinct stories. The first is an account of the processes      
developed by the Fourth Circuit for summary disposition of appeals, which at  
the same time makes claims for procedural fairness of those processes. [FN123]
The second is a complaint about volume of postconviction appeals, accompanied 
by various rhetorical justifications for summary disposition. [FN124]

  The extract from the Haynsworth Report first describes the two habeas clerks
who handle between 500-600 appeals that constitute about half the court's new 
cases each year as both "very able young lawyers" with "prior concentrated    
academic or practical experience in this field." [FN125] Whatever kinds of    
qualifications that latter phrase might encompass, the ability of the habeas  
clerks seems attested to not only by the volume of cases they process but also
by the dual role they serve: They are at once "our habeas clerks" and         
"advocates for the appellants." [FN126]

  The procedure followed by clerks and the judges they serve is as follows.   
*1462 Without benefit or handicap or irritation of taking instructions from   
their other "clients," the clerks "prepare memoranda which fully develop the  
contentions of the appellant and which incorporate in them all material which 
can be assembled to support the appellants' contentions." [FN127]

  The quotation from the Report deflects the irony provided by the context of 
the precedent that Jones No. 2 is, at last, explicitly overruling, when it    
notes that in these clerk-prepared "records," "of course," "[t]here are       
references . . . to all relevant judicial decisions." This raises live        
questions about whether unpublished decisions are "relevant." As the Jones No.
2 court acknowledges, many unpublished opinions are "generally unavailable to 
the bar" and "access [to unpublished opinions] is unequal and depends [or so  
the court claims] on chance rather than research." [FN128]

  The soi-disant "record" prepared, the alleged contentions of the appellants 
developed, the judges--three of them in each case--take over from the clerks. 
They review records provided not by independent attorneys but by young clerks 
in their employ who are also deputed to represent prisoner-appellants. At this
point the Appendix's second story emerges, revealing frustration at the       
litigants in whose image contemporary institutionalized unpublication was     
developed. Chief Judge Haynsworth has already claimed that independent        
attorneys get frustrated by having to represent indigent prisoners in the     
unmeritorious appeals that by this stage in history are only part of the      
fodder for the summary disposition procedure resulting in unpublished         
opinions. Are the clerks likely to be less frustrated by virtue of            
inexperience or of their sharing of the court's conviction that this is an    
heroic struggle to lift from the court the "burden" [FN129] that "increasing  
annually at an alarming rate" threatens to "swamp[]" [FN130] and "clog"       
[FN131] the court? Or perhaps, as a later Federal Judicial Center study       
suggests is widespread among staff attorneys, [FN132] they came to share the  
court's frustration and distaste for the appeals?

  Thus it is perhaps unsurprising that notwithstanding the Report's claims for
the findings as to the dependability of the habeas clerks, it is at pains to  
attest to judicial involvement in the process. Not content with reading the   
memoranda prepared by the habeas clerks (as of course they should not be,     
given that the clerks write for the prisoner-appellants as well as the court),
someone (the passive voice makes it unclear who, perhaps the judges or perhaps
their clerks, *1463 habeas or chambers) carefully checks and examines the     
record, reads and studies "any formal or informal brief which the appellant,  
or a lawyer in his behalf, has filed."

  This account of the process of disposing of postconviction appeals,         
emphasizing as it does the court's claim for the pains taken in the process,  
produces a paradox: The Report claims that "the postconviction cases disposed 
of without a formal hearing [in fact without any hearing] require almost as   
much judicial time as if they were fully heard."

  This claim returns us again to Knight. It was an unpublished opinion dating 
from 1971, emerging from precisely the procedure that Chief Judge Haynsworth  
is at such pains to justify and which the Jones No. 2 court adopts and        
reproduces to shore up its justification for an unpublication system. That    
system, in the short, three-opinion sequence from Jones No. 1 to Knight,      
demonstrates inconsistent treatment of litigants, the uncertainty that is the 
corollary of such inconsistency, and judicial opinions of such poor quality   
that they completely misinterpret U.S. Supreme Court precedent. I am not here 
making the naive claim that courts are either necessarily constrained by the  
doctrine of precedent or principled in their use of it. Knight's misreading of
Wade, however, is in a league beyond the far reaches of interpretability or   
bad faith. It is either the product of incompetence and slipshod procedures or
so breathtakingly cynical that it understands the unpublication system as     
giving courts carte blanche to dispose of cases however they please, precedent
ironically notwithstanding, more or less safe (as the lengths I had to go to  
in order to recover its text reveal) from scrutiny. This is a subversion of   
the "rule of law" guarantees that the doctrine of common law precedent outside
the contemporary United States provides citizens and other litigants. Absence 
of hearing and of published opinion means secrecy, and absence of scrutiny and
accountability; relatively junior habeas clerks in the employ of the court    
have no independence from a judiciary whose distaste for the civil rights of  
prisoners is as manifest in their writing as in their decisions about         
"screening."

  It may be that Knight was an opinion so poorly drafted that it provided     
evidentiary support for one of the key justifications raised by the bench for 
the practice of unpublication: that these opinions are not polished. However, 
claims of ineptitude or carelessness in the process of writing these opinions 
are something that the courts eschew, understandably in terms of their        
interest in promoting the legitimacy of the judicial branch. Perhaps it is    
that this was an opinion drafted by a clerk or staff attorney, whose work in  
the material production of opinions is a persistent "ghost in the machine" of 
the administration of what is often called justice, as this article will go on
to suggest. Or perhaps it was an appellate judge making law that benefited    
indigent, unrepresented prisoners, as she was entitled to do given the Supreme
Court's manifest reluctance to make law that categorically denied them the    
right to transcripts of their trial where they sought to collaterally attack  
them. What it clearly wasn't was what the Jones No. 2 court said it was, more 
or less *1464 safe in the knowledge that the circulation of Knight v. Coiner, 
which might disprove their revisionist history, was likely extremely limited.

  The Fourth Circuit's current rule on pro se appeals provides as follows: 
    An individual may proceed without the aid of counsel, but should so inform
the Court at the earliest possible time. In any pro se appeal, the clerk shall
notify the parties that they shall file informal briefs as provided by Local  
Rule 34(b). The Court will limit its review to the issues raised in the       
informal briefs and will consider the need for the appointment of counsel when
reviewing the appeal under Local Rule 34(a). Cases involving pro se litigants 
are ordinarily not scheduled for oral argument. [FN133]

  Thus modern institutionalized unpublication was born--prompted by appeals   
from litigants for whom the judges had scant regard; eliciting still less     
regard for the rights of those litigants or for the rule of law; providing    
cover for ineptitude and bad faith; normalizing structural subordination.

  Over the past three decades there has been a steady output of critical      
scholarship and legal journalism about the practice of "unpublication" and its
two related practices, "depublication" and "stipulated withdrawal," and some  
justification of them. However, beginning in 2000 several things happened that
suggested the timeliness of a major critical study of the phenomena of private
judging in the U.S. courts. In Anastosoff v. United States, [FN134] Richard   
Arnold, a judge of the United States Court of Appeals for the Eighth Circuit  
and long a critic of unpublication, took the opportunity offered by writing   
the panel opinion to opine that the Eighth Circuit's rule rendering           
unpublished opinions nonprecedential was unconstitutional. His reasoning was  
that designating opinions nonprecedential is beyond the power of Article III  
judges, who may only constitutionally exercise "judicial" power. Later in     
September 2001, in Hart v. Massanari, [FN135] Judge Alex Kozinski, Judge      
Arnold's existential rival on the other side of the unpublication debate (and 
Judge McKeown's colleague on the Ninth Circuit), writing for a panel of the   
Ninth Circuit, held that the Circuit's nonpublication rule was constitutional.
On the two occasions thus far that the Supreme Court has been asked to rule on
the constitutionality of the Seventh Circuit's rule on unpublished opinions,  
it has failed to do so, denying certiorari in Do-Right Auto Sales v. United   
States Court of Appeals for the Seventh Circuit [FN136] and not reaching the  
issue, on which it had granted *1465 certiorari, in Browder v. Director,      
Department of Corrections of Illinois. [FN137]

  2. The current state of unpublication.

  The most significant development in the recent discourse on unpublication,  
viewed from the perspective of my project in this article, came as I have     
noted supra, at the 2001 meeting of the AALS, serendipitously enough (given   
the thesis of this Article) in a panel discussion of legal authority. There a 
federal appellate judge spoke of the "private history" of the practice of     
unpublication as a response to judicial concern about significantly increased 
appeals in both civil rights and pro se prisoner cases. [FN138] Judge McKeown 
also drew attention to the scale of the practice of unpublication: In the     
vicinity of 80 percent of the opinions of the United States Court of Appeals  
are unpublished. [FN139] This was followed by the publication of an edition of
the Journal of Appellate Practice and Process [FN140] with a mini-symposium   
dedicated to unpublication.

  2001 saw the beginning of a series of events calling for reform of, and in  
some cases actually reforming, the "noncitation" aspect of the unpublication  
rules and making more unpublished opinions at least theoretically available   
(although not always readily so). [FN141] No such action has occurred in      
relation to *1466 that aspect of unpublication that goes to the designation of
the precedential value or lack thereof of unpublished opinions. In August of  
2001 the A.B.A. Sections on Criminal Justice, Tort, and Insurance Practice and
the Senior Lawyers Division reported to the A.B.A.'s House of Delegates a     
resolution labeling noncitation rules "contrary to the best interests of the  
public and the legal profession" and calling on the federal courts to make    
unpublished opinions available on court websites and via print and electronic 
publication. [FN142] In September 2001, West announced that it would publish  
all unpublished opinions of the United States Court of Appeals from January 1,
2001, in a new reporter called the Federal Appendix. [FN143] In fact, the     
Federal Appendix, like the LEXIS and Westlaw databases before it, only        
publishes those "unpublished" opinions released to these publishers by the    
circuits, [FN144] and West itself edits out *1467 from the Federal Appendix   
some opinions released to it by the courts on the basis that they "are so     
purely formal as to not allow a synopsis and at least one headnote." [FN145]

  However, posting on websites or even making cases available to LEXIS and    
Westlaw does not guarantee that these opinions are searchable. Just as        
"withdrawn" opinions become effectively unsearchable on Westlaw because West  
strips vacated opinions of key numbers and headnotes and does not include them
in Digests, [FN146] so: 
    Free Web sites that include collections of court opinions typically offer 
only a very limited and rudimentary set of retrieval mechanisms. These include
the capability of searching by party name, date, judge, docket number and key 
word. Natural language search engines are rare. Other methods [such as Boolean
searching] are non-existent. And, once retrieved, the cases on the free sites 
are bereft of editorial enhancements such as headnotes and citatory links that
would lead the researcher to other relevant cases and facilitate case         
validation. [FN147]

  Mills also notes that because of the current redundancy of methods of       
document searching and retrieval, "no single system" of document searching and
retrieval currently needs to be perfect. [FN148] Further, as Mills concludes, 
"many thousands" of unpublished opinions are not available on either LEXIS or 
Westlaw; LEXIS and Westlaw "show markedly different statistics in their       
coverage, both in regard to the number of unpublished opinions and the total  
number of opinions they contain," and "the ratio of opinions that can be found
[on LEXIS or Westlaw] versus those that can not be found is unknown, and is in
any case a moving target." [FN149] In addition, "some unpublished opinions    
apparently never make it to the published tables" [FN150] of unpublished      
opinions that appear in reporters, making these almost impossible to research.
Finally, the body of free unpublished opinions available on the Internet is   
insufficient "to sustain an adequate research effort in case law authority:"  
[FN151] 
    [Free] Web sites currently contain, at most, only those cases that have   
been loaded since their inception, which is rarely more than five or six      
years' worth of cases. Thus, only a small fraction of any circuit's cases,    
published or unpublished, can be retrieved through these sites. Not all of the
free Web sites are hosted by the courts themselves [but rather by law schools,
which host *1468 some of the circuit court sites, or law firms], but even the 
sites hosted by courts lack an explicit commitment to the continuing          
maintenance of a permanent archive of opinions that would include all         
unpublished opinions. In the event that the computers serving a particular    
site became overburdened, there is no guarantee that some opinions might be   
eliminated. [FN152]

  Finally, given actual and proposed developments in the market for commercial
publication of opinions, effectively a duopoly in the United States, which    
have seen West ceasing to publish a growing list of Digests, many academic    
libraries [FN153] ceasing subscription to paper Shepards citators, which may  
well in turn lead to the cessation of paper Shepards, and now allegations that
West is considering ceasing to publish paper reporters [FN154] (which West    
currently denies, despite its having moved to make opinions available online  
in pdf format), the imbalance of access that wealthy and institutional        
litigants have to unpublished opinions seems likely to increase rather than   
decrease. Together with the high cost of research on LEXIS and Westlaw and    
their effective duopoly status in the U.S. legal information marketplace,     
these developments make the current claims by many commentators [FN155] that  
unavailability or secrecy of unpublished opinions is a practical and/or       
technological deadletter [FN156] shortsighted as well as inaccurate. [FN157]

  The material practices of legal publishing raise similar problems in the    
context of stipulated withdrawal of opinions. Perhaps the most significant    
material practice of stipulated vacatur is that LEXIS, Westlaw, and West have 
"similar policies . . . and will usually remove cases that are vacated and do 
not appear in the official reporters." [FN158] In addition, West's practice of
stripping vacated opinions of key numbers and headnotes and not including them
in Digests, mentioned supra, makes them unsearchable on Westlaw as a practical
matter. [FN159] Any reader who has tried to do LEXIS' equivalent of a digest  
search will register just how significant this is.

  The timeliness of a sustained and critical examination of the practices of  
*1469 private judging is even more strongly suggested by some tentative steps 
recently taken by courts and other bodies to end the oldest of the practices, 
unpublication, and the powerful opposition those steps have attracted.

  Since January 1, 2002, modest institutional reforms to the practices of     
private judging in the courts have been initiated or foreshadowed by the Third
[FN160] and District of Columbia [FN161] Circuits; the Subcommittee on Courts,
the Internet, and Intellectual Property of the Committee of the Judiciary of  
the House of Representatives; [FN162] the Advisory Committee on Appellate     
Rules; [FN163] the Texas Supreme Court; [FN164] and the California Court of   
Appeal. [FN165]

  Perhaps the most significant of these developments was set in motion on     
November 18, 2002. On that date the Advisory Committee on Appellate Rules, an 
advisory committee to the Federal Judicial Conference, responding to the      
Justice Department's proposed rule change, approved a proposal for a new      
uniform rule, at that point still to be drafted, for all the circuits of the  
United States courts of appeals, to be included in the Federal Rules of       
Appellate Procedure. The initial proposal provided that, if adopted, the      
proposed rule would "allow the citation of unpublished opinions solely for    
persuasive value." [FN166] Later, the Advisory Committee announced three      
alternative possible changes to the Federal Rules of Appellate Procedure: 
    Alternative A allows courts to designate opinions "nonprecedential," but  
allows citation to those opinions for their persuasive value, as well as for  
claim or issue preclusion, double jeopardy, law of the case or similar        
arguments. This proposal forbids courts from imposing any restriction on      
citation to "nonprecedential" opinions that they do not generally impose on   
citation of other sources. 
    *1470 Alternative B is much the same as Alternative A, except that it does
not specifically allow courts to designate opinions as "nonprecedential." 
    Alternative C differs from Alternative B in that it allows citation to    
"nonprecedential" opinions as persuasive authority on a material issue, so    
long as there is no "precedential" opinion of the circuit on that issue. It   
also notes that citation to such opinions is "disfavored." Alternative C      
resembles a proposal made by the U.S. Department of Justice. [FN167]

  On May 15, 2003, the Advisory Committee met and approved the following      
proposed amendment to the Federal Rules of Appellate Procedure: 
    Rule 32.1 Citation of Judicial Dispositions 
    (a) Citation Permitted. No prohibition or restriction may be imposed upon 
the citation of judicial opinions, orders, judgments, or other written        
dispositions that have been designated as "unpublished," "not for             
publication," "non-precedential," "not precedent," or the like, unless that   
prohibition or restriction is generally imposed upon the citation of all      
judicial opinions, orders, judgments, or other written dispositions. 
    (b) Copies Required. A party who cites a judicial opinion, order,         
judgment, or other written disposition that is not available in a publicly    
accessible electronic database must file and serve a copy of that opinion,    
order, judgment, or other written disposition with the brief or other paper in
which it is cited. [FN168]

  On May 22, 2003, Judge Alito, the Chair of the Advisory Committee, reported 
this and other proposed rule changes to Judge Scirica, Chair of the Standing  
Committee on Rules of Practice and Procedure of the United States Judicial    
Conference. [FN169] On August 15, 2003, the Standing Committee announced the  
proposed rule changes and sought public comment on them. Hearings on the      
proposed rule changes were scheduled to be held in January 2004, and written  
comments on them were required by February 16. [FN170] The *1471 rules        
adoption process takes about two years, involving a public comment period and 
approval by bodies including the United States Supreme Court [FN171] and      
Congress. [FN172]

  There are powerful forces opposing the proposed federal appellate rule      
change. The dissenting vote on the Advisory Committee on Appellate Rules on   
November 18, 2002, was a partner at Milberg Weiss Bershad Hynes & Lerach.     
[FN173] Judge Kozinski intervened with the Solicitor General, whose           
representative at that meeting abstained from the committee vote. [FN174]

  But Judge Kozinski and the Solicitor General are not the only highly placed 
opponents of (un)publication rules. The Reporter for the Advisory Committee on
Appellate Rules, Associate Dean Patrick J. Schiltz of the University of St.   
Thomas Law School, was quoted as saying that the rule initially proposed "will
be very controversial, and rules that are very controversial rarely take the  
quickest path." [FN175] Judge Alito, the Chair of the Judicial Conference's   
Advisory Committee on Appellate Rules, in testimony before the Courts         
Subcommittee, referred to continuing concern by several of the circuits about 
the removal of the no-citation rule [FN176] and noted that the chief judges of
the circuits were "sharply divided" on the Justice Department proposal.       
[FN177] Only an extreme optimist, then, would have any confidence that the    
proposed modest rule change would ever clear the Judicial Conference. To the  
extent that the status quo seems unlikely to change, let me describe the      
features of contemporary institutionalized unpublication of opinions in the   
U.S. courts.

  As noted supra, unpublished opinions are more difficult to locate than those
that are designated "for publication" and citing them to the courts that      
issued them is either banned or seriously limited. Perhaps more significantly,
they are produced with less care and labor than published opinions and        
sometimes in quite different ways and by different people. In addition, the   
volume of unpublished opinions at the state and federal level is often        
extremely high, in many--probably most--jurisdictions constituting the        
significant majority of cases finalized by courts. Finally, the material      
practices that produce unpublished opinions and govern access to and citation 
of them, viewed nationally, are haphazard.

  Let me look first at the rates of unpublication in appellate courts. As I   
have noted supra, in 2000 the rate of unpublication in the Federal Courts of  
Appeals ran at 79.8%, with the Fourth Circuit having the highest rate at 90.5%
and the *1472 Seventh the lowest, at 56.5%, up significantly from the First   
Circuit's lowest tally for 1999 of 45.5%. [FN178] Only a tiny number of states
do not institutionalize unpublication of judicial opinions. [FN179] Many state
appellate courts designate a majority of their opinions as "not selected for  
official publication." [FN180]

  Trial courts and appellate courts both federal and state also "unpublish" a 
high proportion of their decisions. At the federal district court level,      
"Nationwide, over 260,000 civil cases were filed in the federal district      
courts during fiscal [year] 1999 . . . . [E]ach year only a few of the federal
district court decisions are designated for publication by each district court
judge." [FN181] In the Federal District Court for the District of Colorado,   
for example, "one judge published 36 opinions and another published only one. 
On average, the federal district judges each choose approximately four to six 
opinions per year to be published." [FN182]

  While unpublication rates are high nationally, they are often inconsistent  
within jurisdictions as well as between them, often varying enormously. To    
take one example, in 1990, "publication rates [of appellate decisions in Texas
state courts] varied widely from only 8 percent in Waco to 66 percent in      
Beaumont." [FN183] So also we find inconsistencies in criteria advanced or    
employed for consigning opinions to unpublication. While the fundamental      
rationale for designating an opinion "not for publication" is that "only      
decisions with precedential value will be published," [FN184] courts have     
formally differing *1473 criteria as to what opinions merit publication.      
[FN185] However, the "lack of precedential status" rationale is in implicit   
conflict with the efficiency justification that categorizes much contemporary 
discourse justifying unpublication. [FN186] If these cases were truly routine 
and straightforward, why do the courts need to justify treating them          
differently from "genuinely" precedential opinions in order to save resources?

  Procedures to provide access to unpublished opinions also vary widely.      
[FN187] Unpublished opinions may be posted on websites or made available to   
West or LEXIS, but "Westlaw and LEXIS representatives said there is no        
systematic way of choosing which unpublished opinions will be reported in     
their services. Instead, when a subscriber asks about a particular opinion,   
then they acquire it from the clerk of the court and post it." [FN188] "At    
least two appellate courts [in Texas] provided hundreds of 'unpublished'      
opinions to Lexis and Westlaw while others provide none." [FN189] This        
practice opens up the possibility for repeat-player litigants to use the      
procedures of the commercial duopoly legal publishers to manipulate precedent 
by creating precedential volume in areas where they selectively petition for  
publication.

  So also are there differences in who makes decisions about unpublication. At
the federal district court level, "[e]ach judge decides what to submit for    
publication and posts it on the court's web site. The publishers look at the  
web site to determine what they want to publish." [FN190] Some courts make    
this decision by committee. Others consign it de facto to clerks. Hangley     
notes that "[c]onversations with a number of district judges disclose that    
their 'window picking' procedures are anything but uniform. Some judges select
the opinions they consider most significant for reporter publication, some    
leave that task to their clerks, and others leave the entire selection process
to West Publishing." [FN191]

  These practices can make a difference: Where single judges can decide       
whether to publish, fewer decisions are consigned to unpublication; where a   
majority of judges must decide this, unpublication levels are the highest.    
[FN192] Another difference in the practices courts adopt for handling         
unpublished *1474 opinions is that some courts have a published procedure that
allows for parties to petition the court to publish an unpublished opinion.   
[FN193] There is evidence that still other courts allow this in the absence of
a publicly promulgated rule. [FN194] Once again, this enables the selective   
manipulation of precedent by well-informed litigants.

  The effect of unpublication on precedential status of an opinion is         
similarly haphazard. [FN195] The Appendix to this article sets out            
unpublication and noncitation rules for each federal circuit and the states,  
as well as depublication rules and practices for those state jurisdictions    
that more or less openly practice depublication. At the extreme end of the    
scale are the complete bans. [FN196] Then there are the intermediate bans.    
[FN197]

  At the most liberal end, the Third Circuit does not forbid litigants to cite
unpublished opinions, but, by tradition, does not cite its not precedential   
opinions as authority. The D.C. Circuit recently adopted this position, but   
paradoxically insists that a panel's decision to issue an unpublished         
disposition equates to the panel seeing no precedential value in that         
decision.

B. Stipulated Withdrawal

  Despite claims that stipulated vacatur--which both "erases [a vacated       
opinion] from the books forever and generally eliminates its precedential or  
preclusive effect" [FN198]--is a recent phenomenon, [FN199] the practice of   
stipulated withdrawal or vacatur of judicial opinions at the motion of        
litigants as a condition of settlement probably began in the federal courts   
sometime between 1950 and the 1980s in the decisions in United States v.      
Munsingwear, Inc. [FN200] *1475 and Lake Coal Co. v. Roberts & Schaefer Co.   
[FN201] Texas courts "have routinely granted motions to vacate lower court    
judgments upon mootness based on an agreement of the parties while on appeal" 
since 1943. [FN202] By the 1980s the practice had become nationally popular.  
[FN203]

  The practice of stipulated vacatur by reason of settlement gives litigants  
significant power to persuade courts to exercise their longstanding authority 
to vacate decisions as a condition of settlement of litigation after the      
original decisional court has ruled on the matter and while an appeal is      
pending. Before U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, [FN204] 
in some jurisdictions that power reached the level of mandate; [FN205] others 
were opposed to granting vacatur in these circumstances. [FN206]

  *1476 In California, in Neary v. Regents of the University of California,   
[FN207] the state supreme court began the routine practice of granting        
reversal of the lower court's opinion rather than mere withdrawal or vacatur. 
[FN208] There, over both a strong dissent [FN209] and a concurrence that      
criticized the Neary court's creation of a presumption in favor of stipulated 
reversal, [FN210] the court reversed the trial court opinion, responding to   
(1) the request of the parties pursuant to a settlement agreement providing   
that they would seek vacatur [FN211] and to (2) some confusion on the parties'
behalf about whether they wanted vacatur or reversal, [FN212] which was       
ultimately cast as a request for vacatur rather than reversal. [FN213]        
Moreover, it created a "strong presumption" in favor of reversal at the       
request of parties pursuant to settlement agreements, writing that "as a      
general rule, the parties should be entitled to a stipulated reversal to      
effectuate settlement absent a showing of extraordinary circumstances that    
warrant an exception to this general rule." [FN214] It defined the exception  
to the presumption as "narrow," [FN215] noting that it might be made out in   
the "public interest" where the public interest involved was "specific,       
demonstrable, well established, and compelling." [FN216]

  After a period in which control over stipulated withdrawal was significantly
vested in litigants and in which stipulated vacatur was "widespread," [FN217] 
decisions by the United States Supreme Court in Bonner *1477 Mall, the        
California Supreme Court in California ex rel. State Lands Commission v.      
Superior Court, [FN218] and the California Legislature, embodied in California
Rule of Civil Procedure Section 128(a)(8)(A)(B) (1999), started to shift the  
balance.

  The Supreme Court held in Bonner Mall: 
    [That while it was not saying] vacatur can never be granted when mootness 
is produced [by reason of settlement,] . . . [the] determination is an        
equitable one, and exceptional circumstances may conceivably counsel in favor 
of such a course. It should be clear from our discussion, however, that those 
exceptional circumstances do not include the mere fact that the settlement    
agreement provides for vacatur--which neither diminishes the voluntariness of 
the abandonment of review nor alters any of the policy considerations we have 
discussed. [FN219]

  Explicitly addressing the question, not squarely before the Court in this   
case, of applications for vacatur by reason of settlement to the United States
Court of Appeals, it went on to add: 
    Of course even in the absence of, or before considering the existence of, 
extraordinary circumstances, a court of appeals presented with a request for  
vacatur of a district-court judgment may remand the case with instructions    
that the district court consider the request, which it may do pursuant to     
Federal Rule of Civil Procedure 60(b). [FN220]

  While some California courts followed Neary, [FN221] and some indeed        
compounded the effects of private judging by designating opinions granting    
stipulated reversal "not for publication," [FN222] others limited its effect  
both in decisions and in court rules. [FN223] Legislation that sought to limit
the effect of Neary was passed but vetoed by the Governor. [FN224] In 1995 the
California Supreme Court itself limited the operation of Neary in relation to 
decisions of *1478 appellate courts, confining it to stipulated reversal of   
decisions of trial courts, which it distinguished from appellate courts on the
basis that appellate courts created binding precedent whereas trial courts did
not. It also ruled, citing Neary, that "even in cases governed by Neary, an   
appellate court may refuse to accept a stipulated reversal if the refusal     
would further a 'specific, demonstrable, well established, and compelling'    
public interest." [FN225]

  In 1999 the California Legislature enacted Code of Civil Procedure Section  
128(a)(8), which provides: 
    [Appellate courts] shall not reverse or vacate a duly entered judgment    
upon an agreement or stipulation of the parties unless it finds both of the   
following: (A) There is no reasonable possibility that the interests of       
nonparties or the public will be adversely affected by the reversal. (B) The  
reasons of the parties for requesting reversal outweigh the erosion of public 
trust that may result from the nullification of a judgment and the risk that  
the availability of stipulated reversal will reduce the incentive for pretrial
settlement.

  The enactment has operated to place some limits on stipulated reversals--now
"[c]ases involving violations of professional duties . . . or other public    
legal obligations with collateral consequences are not good candidates for a  
stipulated reversal because the court may believe the appellant is attempting 
to purchase immunity from public responsibilities" [FN226]--but these         
"powerful bargaining chip[s] . . . remain obtainable." [FN227]

  There has been no comprehensive treatment of the effects of Bonner Mall on  
the rates of stipulated vacatur pursuant to settlement. Resnik suggests that  
it has "placed some restraint" on vacatur when mootness is produced by        
settlement in federal courts. [FN228] It has led to changes in practice in    
both the federal appellate and district courts, [FN229] but was arguably      
rejected by the Ninth Circuit insofar as its impact on vacatur of federal     
district court decisions is concerned, [FN230] and has been limited by other  
courts in certain kinds of cases, for example where the losing party at trial 
settles. [FN231] Lawyers have apparently developed at least one fairly        
elaborate technique of avoiding Bonner Mall by using Federal Rule of Civil    
Procedure 60(b) and persuading appellate courts to *1479 remand cases after   
requests for vacatur to district courts for consideration. [FN232] However,   
the effect of Bonner Mall on state law-based litigation has been limited:     
While courts in New York, Oregon, Connecticut, the District of Columbia,      
Illinois, Missouri, and Oklahoma have followed Bonner Mall to a greater or    
lesser degree, [FN233] state courts in California, Texas, and Wisconsin still 
"favor . . . vacatur of cases upon the parties' request following settlement."
[FN234] In addition, Bonner Mall has had little effect on intellectual        
property suits and cases where a government agency is a party. [FN235]        
Further, Anderson, Garbowski, and Healy note that the decrease in the use of  
vacatur by repeat-player litigants to manipulate what they call the "sale" of 
precedents as a result of the recent limitations on the availability of       
vacatur has been met with an increase in unpublication. [FN236]

C. Depublication

  The California Supreme Court initiated the practice of depublishing opinions
in 1971. Hawaii and Arizona also depublish opinions, and Michigan adopted the 
practice briefly, abandoning it in 1997. [FN237] There is scattered evidence  
that other courts are doing it silently, and, like Hawaii, without official   
mandate in the form of court rules. [FN238] California, however, is where most
depublication takes place. [FN239] Most of the discussion of depublication    
that follows focuses on California, because the vast majority of the available
literature relates to California.

  *1480 Depublication involves the California Supreme Court striking from the 
record [FN240] and rendering almost completely precedentially void [FN241]    
decisions of California's intermediate appellate courts, without appeal,      
hearing, or reasons. [FN242] These opinions have previously been designated   
"for publication" by the California Court of Appeal, [FN243] which designates 
very few of its opinions "for publication," [FN244] the default position since
the adoption of Rule 976 in 1964, [FN245] which mandates that decisions remain
unpublished unless the Court of Appeal finds that they meet one of the        
standards enumerated in Rule 976(b) of the California Rules of Court. The gap 
that occurs between original publication and depublication can be as long as  
fifteen months, thus "inject[ing] a great deal of uncertainty in the citation 
of recent court of appeal opinions as authority because they are still subject
to depublication." [FN246]

  Complicating the picture of the way depublication operates, however, the    
Supreme Court in 1990 officially stripped the practice of depublication of its
*1481 original published meaning [FN247] pursuant to a California Rule of     
Court that for the first time provided a formal mandate for depublication.    
[FN248] California Rule of Court 979(e) provides that depublication "shall not
be deemed an expression of opinion of the supreme court of the correctness of 
the result reached by the decision or of any of the law set forth in the      
opinion." [FN249] Recently the California Supreme Court has announced that it 
will move away from its practice of keeping secret its rate of                
"depublication," and as of its 2003 statistical report will both "count       
depublications [and] compile them for the past 10 to 15 years." [FN250]

  How significant a phenomenon is depublication in California? Qualitatively, 
"any lawyer who practices appellate law who isn't fully familiar with the     
decertification process shouldn't be practicing this law at all." [FN251]     
Quantitatively, "the practice reached a high of 142 depublished opinions in   
1988-1989 and has [as of 1992] receded to about 100 per year. This is . . .   
still more cases than the Supreme Court decides each year by signed written   
opinion." [FN252] By 2002, after critiques of the work of the court (including
the practice of depublication) by Stephen Barnett [FN253] (and sustained      
critical attention from others), the number of Court of Appeal decisions      
depublished by the California Supreme Court had dropped to twenty-four,       
[FN254] as compared with an output of 115 opinions from the supreme court.    
[FN255] While Barnett, who provided these figures, is a proponent of the view 
that the practice has largely ceased to matter (for reasons of numbers and on 
other grounds discussed infra), the statistics can be sliced other ways.      
Uelmen notes:

  During the first five years of the Lucas Court, [beginning mid-1987], the   
California Supreme Court depublished 586 opinions of the California Court of  
Appeal, declaring what the law of California was not. During the same         
five-year period, the California Supreme Court published a total of 555 of its
own opinions, declaring what the law of California was. [FN256]

  Berch notes that the California Supreme Court has "during several terms . . 
. depublished more opinions than it has published." [FN257] The initial public
*1482 reason for the inauguration of the practice in California was that the  
depublished opinions contained "language which is an erroneous statement of   
the law and if left on the books would not only disturb the pattern of the law
but would be likely to mislead judges, attorneys and other interested         
individuals." [FN258] Other formulations of the rationale were that in the    
"vast majority" of such cases "a majority of the justices consider the opinion
to be wrong in some significant way, such that it would mislead the bench and 
bar if it remained citable as precedent." [FN259] In Arizona, in addition to  
this justification, Chief Justice Stanley G. Feldman, depublication's local   
architect, opined that "[b]y and large, these cases are not cases that involve
evolution of the common law but are cases dealing with application of the     
law." [FN260] Thus he articulated a basis for depublication in the more       
general argument (characteristic of the proponents of private judging) that   
precedential cases are not those that apply more or less stable rules of law  
to novel factual situations.

  Perhaps the real reason for depublication's engendering in California was   
that it was "an attractive alternative to a court splintered by factions and  
burdened by time constraints and a heavy workload," [FN261] although, as I    
will go on to suggest infra, depublication arguably increases the court's     
workload considerably. While at least one California justice (Justice Grodin) 
has claimed that depublication was usually used where the result in the case  
was correct but the reasoning wrong, he indicated that "there are times . . . 
when the supreme court considers the result to be wrong as well," [FN262]     
which seems at best paradoxical and at worst disingenuous, given that         
depublication does not affect the result of the court of appeal decision.

  Let's unpack what Justice Grodin means here. The California Supreme Court   
often solves conflicts between different courts of appeal by depublishing     
*1483 the decisions that go one way and letting those that go the other way   
stand. [FN263] It also tends disproportionately to depublish decisions with   
dissents, although there is no evidence that the depublished decisions have a 
higher rate of legal errors than those that remain published. [FN264] What    
Justice Grodin appears to mean by "wrong results," then, is (1) precedential  
authority that might be used, not by this litigant, whose cause is decided,   
but by a subsequent litigant in a similar case to argue that a controversy    
should be decided in the same way, or (2) that in the face of disparate       
treatment of similarly situated litigants by courts of appeal the supreme     
court prefers one kind of treatment of such litigants over the other. If the  
perspective of the Arizona Chief Justice who adopted the practice there is to 
be believed, that jurisdiction has even less concern about depublication's    
resulting in similarly situated litigants being treated differently than      
California does. I will go on to discuss the kinds of decisions that are      
characteristically depublished later in Part II; what it suggests is that     
particular classes of litigants, and not others, attract this kind of unequal 
legal treatment.
                                       
                     II. The Case Against Private Judging
 
A. Rule of Law Problems with Private Judging

  While even the names given to unpublished opinions vary, [FN265] the        
national incoherence is not the only basis on which unpublication attracts    
criticism. Judge Wald, arguing against the culture of unpublication, has      
written that it imperils the legitimacy of the judiciary, compromises         
transparency, and releases judges from the "discipline" of producing reasoned 
decisions. [FN266] Scholars have added other "rule of law" -based criticisms  
of all three practices of private judging in the U.S. courts that strike at   
the core of the legitimacy of judicial decisions and the court system more    
generally. First, unpublication limits the quality of judicial decisionmaking 
and exacts the price paid by private judging's inevitable concomitant, the    
lack of judicial accountability. The bench, the courts, the law, and civil    
society all pay the price of these results, which have the additional problem 
that they both enable corruption and increase the public's suspicion that it  
may be occurring because scrutiny of what the courts are doing is made        
difficult in many cases and impossible in *1484 others. [FN267] Even if there 
were no credible evidence of misconduct or structural inequality in the       
operation of unpublication, the lack of transparency it produces would damage 
the legitimacy of the judicial system; it is "destructive to law and respect  
for law." [FN268] That disrespect can itself erode the rule of law. Further,  
the material effects unpublication has on the availability of unpublished     
opinions advantage government and institutional litigants and other repeat    
players, such as large law firms; this in turn undermines public confidence in
the judicial system [FN269] with the resulting cost to the rule of law or its 
ideology.

  Fundamental criticisms of the effects of unpublication include its          
"stunting" of the "growth of the law" through "occult" decisionmaking, [FN270]
and allegations of what is either extreme fallibility or disingenuousness in  
labeling decisions nonprecedential. [FN271] "The judges and their screening   
clerks are not and never will be infallible in determining what is or is not a
novel holding or a helpful discussion," [FN272] designating "not for          
publication" opinions that clearly fall within criteria mandating publication.
This is especially disturbing given the quantitative evidence that            
"publication decisions, when combined with limited-citation rules, do affect  
the substance of precedential law." [FN273] Suggesting that this effect is an 
inevitable concomitant of unpublication, Martha J. Dragich has advanced a     
sophisticated account of precedent, arguing that "[d]istinguishing cases based
on subtle differences in the facts is a hallmark of stare decisis," [FN274]   
and thus that the paucity of analysis and factual information                 
characteristically found in unpublished opinions has a profound negative      
effect on the development and application of the law. Then there is a related 
pragmatic critique: If opinions truly add nothing to the body of the law,     
would lawyers bother citing them? [FN275]

  Fundamental legitimacy concerns also dog stipulated withdrawals. Justice    
Kennard, dissenting in Neary, [FN276] identified additional effects of        
stipulated reversals on the legitimacy of the judiciary and judicial process: 
a "tend[ency] to diminish public respect for the judiciary," [FN277] and      
"demoraliz[ing] trial judges *1485 and jurors." [FN278] The Seventh Circuit   
criticized stipulated vacatur on the basis that it made courts a "bargaining  
chip" in settlement negotiations, sacrificing judicial independence, [FN279]  
and drew attention to its negative effects on public respect for the authority
of judges, judicial decisions, and the courts themselves. [FN280]

  As with unpublication and stipulated withdrawal, concerns about             
depublication also include the group of criticisms that relate to what might  
be called judicial accountability and its effect on the quality of lawmaking. 
Depublication strips the judicial process of the quality of reasoning that the
discipline of opinion writing should, at its best, produce. Such public       
judicial reasoning promotes "the uniform declaration of law;" it also provides
a critical mechanism for ensuring both the accountability of the judiciary and
the concomitant public respect for the judiciary that emerges from the        
scrutiny enabled by measures that promote judicial accountability. [FN281]    
Moreover, it has practical effects: A "substantial objection to depublication 
is that such orders leave the bench and bar guessing about the law." [FN282]  
Berch argues that if appellate courts get the law wrong, rather than depublish
and leave the bar and bench guessing about what was wrong with it, the supreme
court should review the decision and issue a reasoned account of its errors.  
[FN283] However, registering again the "ghost in the machine," which is that  
intractable political divisions in the California Supreme Court may have      
provided particular impetus for the development of depublication, he notes    
that depublication may be expedient when the supreme court bench, while       
agreeing that the appellate court was wrong, is divided on the question of how
to resolve the issue. [FN284]

  Berch draws attention to a particular problem of legitimacy when criminal   
appeals opinions are depublished: 
    It is one thing to deny review entirely; it is another to deny review,    
depublish the opinion below, and leave the result undisturbed. Few criminal   
defendants would derive solace in observing that the Supreme Court really     
believed the result was sound. Indeed, it just might occur to the defendant   
that the lower court would not have reached the same result without the       
rejected reasoning. [FN285] 
    In the ten-year period studied by Berch (1990-1999), one third of the     
*1486 depublished opinions were in criminal law matters. [FN286]

  The problem of inconsistency or lack of uniformity in precedent that emerges
in these critiques of depublication is arguably a significantly more serious  
concern, representing as it does two problems with the quality of legal       
institutions and legal professionals caused by the practices of private       
judging. First, the fact that unpublication, like the other practices of      
private judging, obscures inconsistent treatment of similarly situated        
litigants, raises fundamental questions about the U.S. doctrine of precedent  
that are beyond the scope of this Article. Second, it also raises questions   
about why the same court might treat similarly placed litigants differently.  
In 2003, when my students were researching a family law problem turning on the
ability of same-sex couples to adopt in a jurisdiction where the adoption     
statute was, as in many cases, silent on the question, two of the most        
persistent among them discovered via persuasive primary authority and         
secondary literature [FN287] that, although it appeared that this was a       
question of first impression in the jurisdiction in which they were working,  
there was in fact unpublished authority allowing same-sex couple adoption on a
"second-parent" basis. Because of the jurisdiction's rules on citing          
unpublished opinions, they could not refer to this authority in their briefs. 
Nor were the texts of the opinions recoverable, except by ordering them       
directly from the court for a fee. Despite a written request, those opinions  
have yet to arrive.

  This instance of extremely obscure unpublished authority allowing same-sex  
couple adoption while this was officially a question of first impression in   
the relevant jurisdiction is a useful example of the accountability,          
consistency, predictability, and fairness concerns raised by the practices of 
private judging. Why was it that those couples were allowed to adopt without  
their cases providing a precedent for others to rely on? Were their cases     
especially compelling or their lawyers especially effective? Did they benefit 
from *1487 favoritism, or was a judge trying to "bury" a controversial        
decision to shield it from appellate review and the judge from criticism?

  One comparatively legitimate reason why the phenomenon of unpublished       
opinions results in similarly situated litigants being treated differently    
might be carelessness or poor research skills on the part of judges. Lauren K.
Robel's recent research, however, suggests this is unlikely because, like     
experienced practising lawyers, many judges routinely keep up with and        
research the corpus of unpublished opinions. [FN288] Differential treatment   
might arise from genuine and legitimate differences in viewpoint among judges 
of how precedent ought to be interpreted and/or applied. A more troubling     
potential reason might be personal favoritism or hostility towards a          
particular litigant or his or her lawyer. We simply do not know if this is the
case, although I have heard many anecdotes from lawyers and former clerks that
suggest it often is.

  At least one federal judge has gone on the record about lesser forms of     
corrupt practices. According to Judge Wald: 
    [A] double-track system [of publication and unpublication] allows for     
deviousness and abuse. I have seen judges purposely compromise on an          
unpublished decision incorporating an agreed-upon result in order to avoid a  
time-consuming public debate about what law controls. I have even seen wily   
would-be dissenters go along with a result they do not like so long as it is  
not elevated to a precedent. [FN289]

  "Law clerks told [Dean] Robel that judges sometimes would agree not to      
dissent if an opinion remained unpublished. Such internal wrangling is not    
something scholars can study accurately." [FN290] Judge Arnold goes further,  
suggesting "the temptation exists" that 
    If . . . a precedent is cited, and the other side then offers a           
distinction, and the judges on the panel cannot think of a good answer to the 
distinction, but nevertheless, for some extraneous reason, wish to reject it, 
they can easily do so through the device of an abbreviated, unpublished       
opinion, and no one will ever be the wiser. [FN291] There are other published 
claims of abuse of unpublication in both federal and state courts: "Some . . .
suggest that judges use unpublished opinions to hide embarrassing information 
about litigants or to send subtle messages to over-zealous government         
agencies." [FN292]

  One colleague tells me that on the federal court on which he clerked,       
decisions about whether opinions should be published often turned on which    
clerk was perceived to need an opinion of his/her authorship published for    
*1488 future employment purposes. There are also anecdotal accounts of judges 
"punishing" repeat-player litigants and lawyers for whom they are legally     
obliged to rule against their inclination, by not publishing the relevant     
opinion so it will not be available as precedent in future litigation.        
Unsurprisingly, no public record of such behavior exists.

  For these possibilities--of judicial corruption at any point on a sliding   
scale from bad faith and culpable unprofessionalism to influence-peddling of  
varying degrees of venality--to exist is enough on its own, I would argue, to 
radically alter every aspect of unpublication, and not just citation bans.    
Criticisms based on the potential existence or perception of corruption have  
also long attached to depublication, without prompting depublishing courts to 
undertake meaningful reforms to address them.

  A significant aspect of the various criticisms of depublication prior to    
1990 was the evidence that it was dogged by ex parte communications lobbying  
for depublication. In addition to providing a formal mandate for the practice 
of depublication, the 1990 rule changes provided that anyone, whether or not a
party to the case, may ask the California Supreme Court that a published      
appellate opinion be depublished. [FN293] While Rule 979 provides that a copy 
of a request to have an appellate court opinion depublished in California must
be served on the parties, [FN294] the Supreme Court may also depublish of its 
own motion, [FN295] and "[o]rdinarily, an order of depublication does not     
indicate whether, or from whom, a request was received, and the court releases
no data indicating how many requests for depublication are received." [FN296] 
An earlier proposal, made by the California State Bar Conference of Delegates 
but not adopted by the California Supreme Court, provided that the Court had  
to state "[s]pecific reasons, expressed in terms directly related to" the     
unpublished opinion, and that in criminal and constitutional cases it had to  
identify "[e]rrors in reasoning of the court of appeal." [FN297] It would also
have obliged the court to advertise to the public intending depublication in  
each case, including details of "persons or parties requesting" depublication.
Finally, it provided for lodging and consideration of "counter-arguments and  
comments." [FN298] Rule 979 puts the notice requirement on the parties        
lobbying for or against depublication; the safeguard is that their            
communication to the court needs to document the giving of notice.

  The impulse for the proposed alternative to Rule 979 is clear; it also      
belies *1489 the frequent suggestion that lawyers are not troubled by the     
practice. In cases where there was no request for depublication filed with the
petition to the supreme court prior to the adoption of Rule 979, ex parte     
communications were frequently made to judges seeking to influence the        
process, including "mini-briefs or . . . letter writing campaigns." [FN299] At
least some of those involved in these practices were "specialist-insider      
[attorneys], who collect[ed] unpublished opinions . . . and who therefore     
possess[ed] . . . a special insight into the thinking of the intermediate     
appellate courts." They became "experts at engineering the depublication of an
opinion" [FN300] who used this knowledge to attempt to influence the supreme  
court in its process of controlling the development of California law via     
depublication. In an opinion subsequently depublished by the California       
Supreme Court, [FN301] a Court of Appeal judge accordingly criticized the     
depublication practice.

  J.H. Biggs' detailed examination of the California Supreme Court files in   
the period 1974-1979 revealed a number of cases where ex parte communications 
requesting depublication had been made to the court but were not placed in    
court files. [FN302] She writes, without citing authority, that "in cases     
where . . . a request [for depublication] was made, copies of the letters to  
the supreme court were sent invariably to the litigants in the case." [FN303] 
As indicated infra, however, at least in the case that produced Rule 979, no  
such notice was given. Still, as Biggs also notes, the litigants in the       
unpublished case are not really the "interested parties" in depublication;    
those parties are the lower court whose precedent was unpublished, subsequent 
litigants, and particular interest groups. [FN304] As Barnett likewise        
concedes, "[W]hile the rule requires that notice of a depublication request be
served on the court of appeal and each party to the case, those are not the   
only parties who may have an interest in seeing the court of appeal's decision
remain on the books." [FN305]

  While profound ethical problems about the manipulation of depublication     
during its first two decades appear to have been rectified by the notice      
provision in Rule 979, there remain questions about accountability and        
transparency that merit addressing through changes to the practice, should the
*1490 court continue depublication. Recall that the California Supreme Court  
does not usually publish information about who asked for depublication of an  
opinion, nor does it make statistics about depublication requests available.  
Why is this significant? First, there was apparently a practice of, although  
not a mandate for, service on parties prior to the adoption of Rule 979. But  
now as then, despite pressure from the California Bar, there was no           
requirement that the California Supreme Court publish details of who was      
lobbying for unpublication; further, record keeping was not consistent. Nor   
was the giving of notice.

  To merit public confidence, the current procedure, which both permits the   
court to depublish of its own motion and in other cases requires certification
that notice has been given to the parties to the decision which the applicant 
seeks to have depublished, needs to build a corresponding confidence that the 
court will handle applications for depublication with utter scrupulousness.   
One way of signaling to the public that this will be done is for the court to 
publish details of what is depublished and at whose motion, so that records   
may be readily cross-checked. It has declined to do so. The alternative would 
be a track record that invited confidence that such scrupulousness would be   
part of the habitus of justices of the California Supreme Court, and thus     
would guarantee that the system by which parties bear the responsibility for  
serving notice about depublication requests would be subject to searching     
judicial scrutiny. However, the California Supreme Court, prior to Rule 979,  
had erected the "form over substance" fiction that ex parte correspondence    
with the court "merely urg[ing] . . . the court to hear the case are treated  
as correspondence, with the clerk distributing a copy to each justice. These  
letters are not filed." [FN306] Further, they rationalized, "letters to the   
justices which set forth facts and argue for depublication are not kept in the
court files 'because they do not conform to court rules for briefs."' [FN307]

  Critics inferred from the extensive private lobbying of the California      
Supreme Court, documented by Biggs, that, 
    [S]upreme court justices may read and even consider arguments of a        
potentially biased or partisan nature, made outside of accepted appellate     
procedure. The fact that these documents, by their failure to conform, do not 
become part of the court file, only encourages this type of ex parte          
communication with the court. Their absence in the record leaves the highest  
court in California subject to speculation that extraneous influence was      
brought to bear on . . . [matters "before the court" by virtue only of the    
*1491 depublication process]. [FN308]

  This history suggests not a judicial habitus acutely tuned to both          
impropriety and its appearance, but one that was both remarkably unconscious  
of them and, given the court's failure to adopt the much more sweeping        
alternative to Rule 979 proposed in the 1970s, once alerted to perceptions of 
impropriety, remarkably unconcerned with allaying them. Notable exceptions are
former Chief Justice Bird and the former Justice Grodin, who wrote (before    
Rule 979 stripped depublication of its original meaning): 
    Persons outside the judiciary have expressed more substantial concerns    
[about depublication], throughout which I sense a strong undercurrent of      
feeling that goes beyond any specific defect in the depublication process. The
feeling is that depublication is somehow egregious per se--that it smacks of  
an attempt to rewrite history, to censor the expression of views, and perhaps 
even to carry out some secret agenda known only to the court. While this      
attitude may appear quite unfounded to those directly familiar with the       
process, it is nonetheless a widespread perception and one that should not be 
ignored. [FN309]

  There remains no mechanism to ensure that all ex parte communication with   
the California Supreme Court lobbying for depublication does in fact become   
public to the limited extent that the service requirement provides. Moreover, 
the service requirement does not ensure that interested parties outside the   
group of cognoscenti or repeat players will know about a depublication attempt
in time to lobby against it.

  Problems in quality control of the material practices by which unpublished  
opinions are characteristically produced also raise another set of rule of law
problems with unpublication. Deborah Jones Merritt and James J. Brudney note: 
    Many circuits use staff clerks to prepare memoranda disposing of certain  
cases; those memoranda are less likely to be published than opinions prepared 
in a judge's chambers. Staff in many circuits also screen cases for oral      
argument, exerting substantial influence over which cases ultimately generate 
published opinions. All of these practices . . . may affect the selection of  
opinions for publication. [FN310]

  What Hangley's frankness [FN311]--shared by Chief Justice Rehnquist  [FN312]
and Justice Breyer [FN313]--and Merritt and Brudney's careful empiricism      
suggest is *1492 confirmed by a close reading of Cecil and Stienstra's 1987   
Report for the Federal Judicial Center, [FN314] which establishes that in many
circuits the associated practices of "screening cases for the nonargument     
track" and unpublication, together with the delegation of much judicial work  
either to clerks or to staff attorneys who are often junior, inexperienced,   
minimally trained, and dissatisfied with the tasks assigned them, mean that   
judges often do not read any part of the record of an appeal before "signing  
off" on an unpublished opinion written by a staff attorney.

  The Report examines the "screening" procedures used by the Third, Fifth,    
Sixth, and Ninth Circuits to divert large proportions of their workload to    
"paper" determination without allowing oral argument. [FN315] "Screening" is a
process closely linked with contemporary institutionalized unpublication of   
opinions: "[R]elatively few . . . nonargued cases are published." [FN316]     
Similarly, both practices are among those favored by courts to manage         
increased workloads. [FN317] As William M. Reynolds and William L. Richman    
note, *1493 suggesting that Judge Kozinski's antipathy towards increasing the 
numbers of circuits or judges [FN318] is not idiosyncratic, the "Judicial     
Establishment has advanced various reasons for such resistance . . . to an    
increase in the number of judges," [FN319] in part because "it is more        
rewarding professionally to deal with a major securities case than the        
problems of yet another losing Social Security claimant." [FN320] Like much to
do with unpublication, however, the results of screening practices are        
haphazard when viewed across circuits: "[E]ven within case types . . . the    
percentage of cases not argued varies greatly. It appears that some courts    
simply are more willing, or find it necessary, to dispose of a significant    
number of cases without argument." [FN321]

  Then there is the range of rule of law concerns deriving from the material  
practices deployed in unpublication that are raised by statistical evidence.  
Before discussing them, however, it is important to note that these studies   
likely understate the degree of problems caused by unpublished opinions       
because the brevity and carelessness of many of them mean that "as they are   
written" [FN322] it is difficult to tell, for example, if they created novel  
precedent or were overtly discriminatory.

  First, there is substantial and credible statistical and anecdotal evidence 
that different judges have widely differing practices in the proportions of   
opinions they respectively designate "not for publication." Wald writes that  
one judge on the D.C. Circuit "a few years ago authored twenty-three published
opinions and thirty-one unpublished opinions for the court, while an equally  
distinguished colleague authored thirty-four published and only three         
unpublished opinions." What do these statistics mean? Wald speculates that    
high unpublication rates might derive from "overworked judges be[ing] seduced 
too easily into preferring the easier nonrhetorical route, especially in close
cases." [FN323] It may also tell us something about judicial culture that goes
some way to explaining why there is so little judicial concern about          
unpublication: A former colleague reported approvingly that the judge for whom
this colleague clerked published few opinions and was scornful of judges who  
published frequently. While one can speculate that this discourse of *1494    
vulgarity may have its history in a patrician reluctance to have truck with   
commerce in the shape of the agents from West who, in the nineteenth century, 
importuned judges for the opinions that made the company's fortune, it        
suggests the necessity for both jurisprudential theorizing and judicial       
education on the ethics of opinion writing.

  Donald R. Songer's [FN324] statistical study suggested that "criteria [for  
unpublication] are not . . . applied in all instances and concomitantly there 
are many controversial cases that are ending up in unpublished decisions."    
[FN325] It also established that party-political affiliation of appellate     
judges "affect[ed] their votes . . . in a nontrivial number of unpublished    
decisions," again suggesting that formal criteria for unpublication are not   
the only factor that drives decisions to publish. [FN326] Similar concerns are
raised by statistical studies of depublication. Uelmen identified a pattern of
party-line politicization of depublication by successive California Supreme   
Courts and hypothesized that depublication had the effect of reducing the     
already-low rate at which California appellate opinions were published [FN327]
without apparently persuading the court that accountability and transparency  
that might enhance public confidence in the administration of justice         
justified changes in practice.

  More disturbing still, Songer's work showed that judges applied different   
criteria in practice in deciding which opinions to publish, and that this was 
affected by the dominant values of the circuit on which they served: The      
Fourth Circuit published only 11.8% of opinions "brought by underdog          
appellants," whereas the Eleventh Circuit's publication rate for these        
appellants was 33.5%. [FN328] Judges themselves admit that they do not always 
write opinions designated "for publication" when they should do so. [FN329]

  Similar problems emerge in the statistical studies of depublication. A study
by Dubois of depublished opinions found that in the 1982-1983 term, for       
example, 76.5% of the appellate decisions in criminal, debtor-creditor,       
landlord-tenant, employment, consumer, tort, and civil rights cases           
depublished by the Bird California Supreme Court were conservative. [FN330]   
The rate of depublication--and thus the tendency to control the development of
the law--was markedly greater under the conservative Lucas Court after the    
removal of Chief Justice Bird and two liberal colleagues than it had been     
under the Bird Court, up from an average of 78 per year to 117 per year.      
[FN331] This is perhaps unsurprising, as Bird was a critic of the practice,   
[FN332] and a committee *1495 established by her to review California's system
of "selective publication," the most developed in the nation, recommended that
it stop. [FN333]

  Then there are other serious concerns raised by statistical studies of the  
practices of private judging in the U.S. courts. What do we know about who    
wins and who loses in the institutional practice of contemporary              
unpublication? As Judge Wald writes, 
    There ought . . . to be periodic overviews of which kinds of cases get    
sent down one track rather than another. Danger signals include the presence  
of obviously difficult issues or the predominance of certain kinds of cases   
(for example <section> 1983 prisoner cases) [FN334] on one track,             
inconsistencies between published and unpublished results and rationales, and 
widely differing rates of published and unpublished opinions among different  
judges. [FN335]

  There is ample evidence that all of these "danger signals" exist. For       
example, Michael Hannon's work shows that unpublished opinions obscure        
disproportionately favorable treatment of the National Labor Relations Board  
in appeals against its decisions. [FN336] A similar effect occurs in relation 
to criminal appeals; the degree to which the United States prevails in these  
cases is much higher in unpublished than published decisions. [FN337]

  Merritt and Brudney's study of National Labor Relations Act decisions on    
unfair labor practices in the period 1986-1993 established that "outcomes     
among unpublished opinions showed significant associations with political     
party affiliation, specific professional experiences, and other               
characteristics of judges adjudicating the cases." [FN338] They found that    
some "variables distinguish[ing] published from unpublished opinions,"        
including whether the judge had attended an elite law school, did not "track  
formal publication rules," and "discovered substantial evidence of partisan   
disagreement among unpublished opinions, suggesting that those cases are not  
as uncontroversial as publication rules presume them to be." [FN339] They also
suggest that forum shopping and the manipulation of precedent by repeat-player
litigants may result from the inconsistency with which judges apply           
publication criteria. [FN340] Finally, they "note that some of [their] . . .  
empirical findings lend support to the Eighth Circuit's conclusion that the   
Constitution requires Article III courts to accord all of their decisions     
precedential value." [FN341]

  *1496 Ruth Colker's 1999 study of the Americans With Disabilities Act       
[FN342] demonstrated that the large-scale use of unpublished opinions in      
A.D.A. cases, together with both the unavailability of reasons for decisions  
"on Westlaw or the official reporter system" in a significant percentage of   
cases and the nonexistence of reasons for decisions in another significant    
proportion of these cases, "overstates plaintiffs' success rates both at trial
and on appeal." [FN343] Likewise, "[t]he plaintiff win rate in employment     
discrimination cases at the district court level . . . is four times higher in
published than unpublished opinions." [FN344] Thus in this area of law,       
unpublication operates together with other court practices, Colker argues,    
leading to a pronounced prodefendant bias in deciding A.D.A. cases. Moreover, 
hiding opinions via unpublication arguably helps fuel another trend she       
identifies: the media's tendency to misrepresent the A.D.A. as "a windfall    
statute for plaintiffs," which has "'trigger[ed] an avalanche of frivolous    
suits clogging federal courts."' [FN345] Similarly, in labor law, cases       
dealing with "individual rights" of workers deriving from "claims of          
intimidation and discrimination" are less likely to be published than those   
dealing with "bad faith bargaining . . . or union misconduct." [FN346]

  As noted supra, rule of law concerns about unpublication extend to the      
various claims of unconstitutionality that have proliferated since Rules of   
Tenth Circuit was published. In 1992, in Rules of Tenth Circuit the court     
published an order in turn publishing the hitherto unpublished 1986 dissent of
the then Chief Judge of the circuit and two of his fellow judges. That dissent
was to the 1986 adoption by the circuit of a rule that both (1) forbade       
citation and use by any court in the circuit of unpublished opinions, orders, 
and judgments of the court except for the purposes of establishing law of the 
case, res judicata, or collateral estoppel, and (2) declared that unpublished 
opinions, orders, and judgments "have no precedential value." [FN347] The     
court's published reason for the belated publication of the dissent was that  
rule revisions then being undertaken would not change the unpublication rule, 
but that the rule revisions *1497 "will continue to include a reference to the
dissent." [FN348] Despite the use of "continue" [FN349] in their unrevised    
form, the rules revisions did not apparently contain a reference to the       
dissent; the court notes that, "[a]ccordingly, it ordered that the dissent be 
published so that an appropriate citation thereto may appear in the revised   
rules." [FN350]

  The dissenting judges' reference in Rules of Tenth Circuit to Jones No. 2   
occurs in a particularly significant context. They were apparently among the  
first [FN351] to raise the constitutionality of unpublication, an issue that  
has gained recent prominence. [FN352] Their discussion of Jones No. 2 occurs  
in a footnote to the following sentence: "To deny a litigant [the right to    
cite a previous decision which entitles a litigant to prevail] may well have  
overtones of a constitutional infringement because of the arbitrariness,      
irrationality, and unequal treatment of the rule." [FN353] Following a brief  
footnoted discussion of the two Supreme Court cases where the Court had and   
did not take up the opportunity to consider the constitutionality of the      
Seventh Circuit's no-citation rule, [FN354] the dissenters note that the      
Fourth Circuit, in Jones No. 2, "expressed the view that its procedure for    
screening and disposing of cases by unpublished decisions 'accords with due   
process' and the court's 'duty as Article 3 judges."' [FN355] They go on to   
point out what is both an inherent illogicality in unpublication doctrine in  
relation to precedent and an apparent hedging by the Jones No. 2 court about  
the legality of unpublication, which Jones No. 2 justifies at some length:    
"However, although the court said it would not treat its unpublished decisions
as precedent and said it prefers they not be cited, it acknowledged that it   
'cannot deny litigants and the bar the right to urge upon us what we have     
previously done."' [FN356]

  *1498 One group of criticism of depublication is also broadly               
constitutional. It is argued that depublication is unconstitutional and       
otherwise objectionable because it gives no reasons for the court's decision, 
treats similarly situated litigants differently, and is also ultra vires.     
[FN357] It has been argued elsewhere that it violates at least the spirit of  
the Californian constitutional requirement that "all decisions that determine 
causes by California Appellate Courts be supported by an opinion with         
reasons." [FN358] Kelso makes a persuasive argument, based on the workload of 
the Appellate Department of California's Superior Court, the California Court 
of Appeal, and the California Supreme Court, that the Court of Appeal carries 
so many appeals cases and the Supreme Court reviews so few on appeal that the 
conventional view that the Court of Appeal's function is error-correction     
rather than lawmaking is dated. [FN359] Another quasiconstitutional objection 
to the practice is that the pronounced interest of the California Supreme     
Court in controlling the development of California law via the depublication  
process also risks detaching the process from the principal function that     
provides the necessary context for it: deciding cases. [FN360]

  Other insights offered by my analysis of Jones No. 2 and the contexts I     
provide for it are perhaps more troubling than even the constitutional        
critiques of the legitimacy of unpublication. As indicated supra, U.S. courts 
can selectively give relief to some persons on the margins of both (1) U.S.   
society and (2) the legal institutions that are produced by and play a role in
producing that society, and not to others. When they do so they can largely,  
as they themselves admit, cover their tracks. Next, the U.S. courts have      
invented a doctrine that makes precedential value depend on what is at best an
arbitrary, and at worst a deeply interested and inequitable, formal decision  
for which reasons may or may not be given. To the extent that reasons are     
given, they may remain private, in the hands of perhaps only the parties to   
the original decision and some part or parts of the judicial bureaucracy that 
extends to the National Archives.

  This in itself is an example of one of the most significant concerns raised 
by the U.S. courts' practices of private judging: the shadow that the lack of 
transparency surrounding these practices casts on the legitimacy of the       
judiciary. Even today, after the digital revolution in both publishing and    
techniques for searching opinions, a major problem with the "system" of *1499 
unpublished opinions is their inaccessibility, except in those relatively rare
jurisdictions where all unpublished opinions are made available via court     
websites and/or transmission to legal publishers. When decisions that are     
inconsistent with a jurisdiction's formal decisions about what opinions are to
count as precedential are not written; where no reasoning at all is given for 
a court's decision (in the case of so-called "table," "slip," or "memorandum" 
opinions); or where unpublished opinions are not available except to          
institutional and other "repeat player" litigants who can assemble collections
of this "shadow precedent" for their own use, courts can effectively do       
whatever they want, protected by their own fiat from the critical gaze of the 
bar, the media, and citizens. Indeed, as the histories of Jones No. 1, Jones  
No. 2, and Knight suggest, one might well entertain doubts about whether      
judges or their clerks know what is happening or has happened elsewhere in    
their jurisdiction, let alone anywhere else.

  Depublication has likewise attracted criticism for the damage the obscurity 
it produces does to the legitimacy of the work of the judiciary and the       
courts. Uelmen has argued that depublication functions to decrease "public    
confidence in the courts" because its maintenance of "a facade of harmony in  
the law" may make changes that follow the shifting of political majorities and
thus the politics of the bench "appear more sudden and dramatic than they     
really are." [FN361]

  Making the case that depublication compromises the courts' moral            
accountability because of its detachment of the "law-declaring" function of   
the courts from the resolution of disputes and that, unlike the contemporary  
California position, the depublication model in Arizona does not allow for    
party input, Berch argues that secrecy has effects on the way law is made.    
Depublication operates potentially to narrow development of the law by both   
"imped[ing] dialogue" with the legislature, and insulating cases from review  
by the United States Supreme Court. [FN362]

  There are other concerns about transparency and depublication. While "[s]ome
critics, including some court of appeal judges, liken depublication to a form 
of censorship . . . an opinion that is depublished is not censored; the       
opinion remains published in the unofficial reporter and is available         
electronically." [FN363] This justificatory claim that depublication does not 
mean secrecy because depublished decisions are freely available is a frequent 
one. [FN364] While they are not as freely available as Barnett suggests (only 
the citation to the California Reporter will yield the opinion on both a      
Westlaw or LEXIS search, a citation to the California Appellate Reports on    
Westlaw producing a negative response that does not cross-reference to the    
unofficial reporter), it *1500 appears also that some depublished opinions are
not published in West's California Reporter. [FN365] In addition, given that  
they are available in the unofficial reporter, why go through the elaborate   
symbolic process of stripping them from the bound volumes of the official     
reporter and making them more difficult than they might be to find on Westlaw 
or LEXIS? These opinions are more troublesome to find than published decisions
(for no rational reason, given that they are, generally, findable if one has  
enough identifying information, which will in practice provide differential   
access to repeat-player lawyers and litigants than others), and their ready   
searchability in the unofficial reporter depends on West's deciding to publish
them there.

  Transparency concerns are not just questions of principle--they have        
practical and ethical ramifications as well. Difficulties in access have      
material effects on the ways both lawyers and judges do their work: "There are
continuing concerns regarding the practical effect of the depublished opinion 
upon lawyers' ethical and professional duties in representing clients."       
[FN366] As Katz notes, the rule against citation of depublished opinions means
that as a practical matter it does have an effect: Attorneys cannot cite      
depublished opinions without the risk of sanction, and depublication operates 
to discourage courts from issuing opinions like ones previously depublished.  
[FN367] The same argument may equally well be made about the effect of        
noncitation in the case of unpublication rules.

  Berch points to the practical and ethical problems depublication causes     
lawyers in Arizona. In addition to anxieties about when and in what           
circumstances they can avoid a ban on citation, he notes that lawyers cannot  
ignore them given that trial judges may follow their reasoning and that the   
practice advantages repeat-player attorneys and litigants, electronic research
notwithstanding. [FN368]

  Institutionalized stipulated withdrawal exacts a greater price on the       
legitimacy of the courts, however, and one that likewise derives from secrecy.
There is the cost to the development of the common law. Justices Stevens and  
Blackmun, dissenting in Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips
Corp., put it this way: "Judicial precedents are presumptively correct and    
valuable to the legal community as a whole. They are not merely the property  
of private litigants and should stand unless a court concludes that the public
interest would be served by vacatur." [FN369] Stipulated vacatur compromises  
*1501 the public value of precedent and tends to promote uncertainty in the   
law. [FN370] All this is unsurprising given that, as Jill E. Fisch argues, the
practice leaves the integrity of precedent in the hands of the parties, who   
are equally ill suited to defend it. [FN371]

  Refining this criticism, Barnett describes the majority opinion in Neary as 
follows: 
    Neary says something not only about the California Supreme Court's view of
trial court decisions, but about the way the court reaches and explains its   
own decisions. The court's opinion in Neary is a robust argument, written     
smoothly and pungently, for the position that "courts exist for litigants."   
The opinion, however, is one-sided and poorly reasoned. It is more partisan   
and less candid than the briefs of the parties. The court ignores the         
dissenting and concurring opinions, stretches facts, gives the parties more   
than they asked for, and systematically exaggerates the benefits of stipulated
reversal while belittling the costs. The opinion and the rule laid down in    
Neary are likely to waste judicial resources and erode respect for the courts.
[FN372]

  The "in principle" transparency-based criticisms of depublication likewise  
include those relating to depublication's effect on the development of the    
common law by the courts. Depublication compromises stare decisis. [FN373] Its
narrowing effect was perceptively described by Justice Grodin, who described  
it as "remov[ing the] opinion from the realm of judicial discourse, and       
therefore from the development of the common law." [FN374] It proceeds from a 
very limited comprehension of what the "law is," [FN375] to use Justice       
Grodin's phrase. The law in California may literally be what is found "in the 
bosom of the judges" in cases where, rather than issuing a reasoned decision, 
the California Supreme Court depublishes appellate court precedent. Since Rule
979, the California Supreme Court has exacerbated this problem by depublishing
lines of cases with which it subsequently agreed, when actually considering   
the issue on appeal. Though Barnett's critique does not register this         
development, it makes the practice even more problematic, because it suggests 
depublication may be done with such a profoundly unclear or disputed          
understanding of what the problem with the law is that depublication becomes  
difficult to justify. There is evidence, too, that it has indirect effects on 
the making of the law: Uelmen, a trenchant critic of depublication, suggests  
that depublication actually increased *1502 the unpublication rate of         
California Court of Appeals judges. [FN376] More generally, depublication     
operates to "marginaliz[e] . . . the lawgiving function of the court of       
appeals." [FN377]

  Above all, depublication functions as a control mechanism on the development
of the law. [FN378] As Justice Grodin put it, it provides "guidance for the   
development of the law." [FN379] Uelmen was less diplomatic: He called it "a  
device to suppress dissenting views." [FN380] Depublication controls the      
development of the law at the price not only of what appears to be its        
potential to better serve the differing interests of a diverse citizenry,     
[FN381] rather than the traditional hegemony, and at the price of allowing    
manifest political party-line ideology to guide that controlling hand, [FN382]
but also at the price of treating similarly placed litigants differently. One 
of the things that emerges from the existing literature on depublication is   
that, like unpublication, it is part of a congeries of control mechanisms that
consume an enormous amount of court resources. [FN383] Justice Grodin's       
insider perspective documents both lengthy and complex processes, a drive to  
produce a single judicial voice, and an extraordinary level of reliance on the
work of clerks and staff attorneys. [FN384] It is worth recognizing that      
depublication is work that the California Supreme Court does not have to do.  
Going by Justice Grodin's account of the resources the "law-cleaning" machine 
consumes, if depublication is done with any degree of systematization and care
the court would find a great deal of additional time and human resources      
available for the business of judging if it abandoned it.

  Uelmen also noted the tendency of the California Supreme Court to depublish 
opinions that had dissents. [FN385] In Arizona, there is evidence that        
suggests either that depublication is used to quell dissenting voices, or that
it is a way of cleaning up after opinions so egregiously wrong about the law  
that *1503 they suggest a troubling lack of competence in those who drafted   
the relevant opinions, whether judges, staff attorneys, or clerks. [FN386]    
While Berch does not advance any analysis of his statistics, he notes a       
radical difference between the rate of depublication of Arizona courts of     
appeal opinions of differing divisions of the court. [FN387]

  In addition to the evidence provided by statistical studies of the          
systematic effects of the practices of private judging, and the insider       
evidence provided by Judge Wald and Judge Arnold of the tendency of the       
practices of private judging to produce either the appearance of corruption in
the way judges make decisions or actually to corrupt the judicial process,    
there is evidence that suggests that the practices of private judging promote 
ideological agendas beyond the party-line bias effects noted supra. Berch     
identifies an instance of depublication being used in the service of a recent 
"wave of federalism" by the United States Supreme Court. [FN388] Katz, too,   
notes a recent example of the "Federalizing" tendencies of unpublication:     
Electro Optical Indus., Inc. v. White. [FN389] There the California Court of  
Appeal extended the "inevitable disclosure rule," a "controversial extension  
of the Uniform Trade Secrets Act," [FN390] confounding the prediction by      
courts in the Ninth Circuit that California would not join the twenty-two     
states that had done so. [FN391] The California Supreme Court depublished it, 
sending "the strongest of signals that it concurred with the federal courts   
and disapproved the doctrinal stance adopted by the California Court of       
Appeal." [FN392]

  In a similar vein, the California Supreme Court depublished the first       
favorable appellate treatment in the United States of a cultural defense,     
[FN393] in a case advanced by an Asian woman on trial for infanticide, [FN394]
while leaving negative treatment of the defense on the books. [FN395] The     
woman's attorney expressed the view that the reason it was depublished was    
because it treated the *1504 cultural defense favorably. [FN396] Howard       
Slavitt records the negative effects on those who would seek to control       
persons trespassing on the property of abortion clinics caused by the         
depublication of a clearly precedential opinion granting the injunctive relief
sought by the clinic; it likewise left the rights of protesters unclear.      
[FN397]

  Whatever the formal shifts in the meaning of depublication in California,   
philosophical criticisms of the practice both persist and remain unanswered,  
and there is widespread evidence that it operates to structurally subordinate 
society's "others."

B. Inequality Effects of Private Judging on Marginalized Groups

  Many criticisms of the practices of private judging deal in various ways    
with unfair treatment accorded by the courts to already subordinated groups.  
How does such unfairness operate beyond the realms of overtly ideological     
biases, documented supra? Unpublication, depublication, and stipulated        
withdrawal render the law unpredictable because a large proportion of the     
texts that provide evidence of what courts do are either not accessible or not
meaningfully searchable. This means that what a court will do in a case is    
differentially predictable by litigants with differential power. The effect is
that the law is not responsive to the demands made of the law by citizen      
litigants because it is forcibly controlled in ways not visible to litigants, 
lawyers, and other citizens. This control is exercised by repeat-player       
litigants and by both actively unethical judges and others insufficiently     
critical of contemporary institutionalized unpublication, [FN398]             
depublication, and stipulated withdrawal. The results are that courts do not--
and indeed are not obliged to--treat similar cases equally; the system of     
precedent structurally subordinates some kinds of litigants and privileges    
others, and the traces of what the courts do are obscured.

  There is substantial evidence that the poor are structurally subordinated by
the practices of private judging in the courts, together with other           
comparatively powerless groups, and that repeat players benefit from them. Why
is it that unpublication, the dominant practice of private judging in the     
courts, is still with us, given the persistence and consistency of the        
criticisms of apologist justifications for unpublication, the gravity of the  
fundamental *1505 counterarguments against the practice, and the statistical  
and other evidence of structural subordination of the powerless and unequal   
treatment of differently situated groups in society? First, as I have         
established, there are powerful forces maneuvering in public and in private   
for its retention. Next, as Reynolds and Richman argue, unpublication is      
mutually constitutive, with an elitist conception of the judicial role, of the
contemporary culture of the federal courts. [FN399] There is considerable     
evidence in the material reviewed in this article to suggest that the         
contemporary U.S. judicial habitus is frequently not attuned to the ethical   
dimensions of publication practices. Richman and Reynolds' work suggests that 
this may derive from the sociology of the contemporary federal judiciary and  
the relatively narrow types of practice backgrounds from which judges are     
drawn. In addition, the relative lack of independent, systematic law reform in
the United States and the comparative parochialism of U.S. legal scholarship  
likely play a role.

  How is structural subordination of the poor achieved by unpublication? Pro  
se cases in the federal courts of appeals result in unpublished opinions much 
more frequently than those filed by counsel. [FN400] Likewise, in cases where 
"the briefing is pro se, bad, or non-existent," cases are disproportionately  
tracked for the nonargument/unpublished                                       
opinion/minimal-judicial-involvement-in- decision treatment. [FN401]

  Other already disadvantaged groups who, scholars suggest, are disadvantaged 
by the unpublication, depublication, and withdrawing of opinions include what 
have been called (following Marc Galanter) "one- shotter" litigants: [FN402]  
abortion rights proponents, members of other minority groups, and indigent    
persons. [FN403] There is likewise evidence to suggest that gay men and       
lesbians are disadvantaged by unpublication. [FN404]

  *1506 "Screening" appellate cases to the nonargument track is often         
associated with a proliferation of unpublished opinions, which frequently have
little input from judges, as they are largely the work of staff attorneys.    
[FN405] Patterns of structural subordination emerge when the material         
practices of screening are examined. Cases involving pro se prisoner litigants
are disproportionately "screened" into the nonargument track, [FN406] as are  
those filed by Social Security claimants [FN407] and civil rights appellants. 
[FN408]

  Of significance here, given the origins of contemporary unpublication and   
screening in the Fourth Circuit's anxiety about the flood of pro se prisoner  
appeals, is that "[p]risoner cases are perceived by many [judges and staff    
attorneys] to be repetitive and unenlightening; [thus] the Fourth Circuit's   
high volume of prisoner litigation [FN409] may be responsible for [its]       
unexpectedly low ratio of published to unpublished opinions." [FN410] Care    
should be taken in treating at face value this perception about pro se        
prisoner appeals. If the perceptions of the members of a profession both      
produce and are produced by their professional habitus, [FN411] the           
significance of this view of pro se prisoner postconviction appeals is not    
that it is "true," but that lawyers disproportionately educated in elite law  
schools and coming to the bench from a relatively narrow range of practice    
experiences will characteristically see it in this way.

  Thus, in cases that judges (and court staff) regard as "low-status,"        
"tedious," and "routine," dispositive decisions are effectively made before a 
*1507 judge ever sees the papers that will result in an unpublished opinion.  
[FN412] These cases "include much litigation in which the government is a     
party, such as review of agency determinations in . . . social security cases,
Federal Tort Claims Act cases, criminal and habeas appeals, civil rights      
actions, and employment discrimination complaints against the federal         
government." [FN413] There is ample evidence that, in many cases in some      
circuits, appellate judges make not just the publication "decision" but also  
write their more-or-less vestigial opinion without ever having actually read  
the primary documents in the record, relying instead on staff memos and       
perhaps one of the briefs. [FN414] And of course, judges often have very      
little to do with the writing of opinions in "screened" cases. [FN415]

  There is likewise ample and disturbing evidence that stipulated vacatur also
makes law that benefits certain kinds of parties and burdens others. For      
example, Slavitt has demonstrated that, at least before Bonner Mall, vacatur  
"often sacrificed the interests of indigent persons and minority groups,"     
including disability claimants. [FN416]

  Like the subordination effects of unpublication, those produced by          
stipulated withdrawal may be complex and indirect. The structural             
subordination produced by stipulated vacatur also flows from the              
circumscription of precedent that is at the heart of my argument in this      
Article: Nonparties who may have an interest in the collateral effects of a   
judgment under the doctrines of collateral estoppel [FN417] may intervene on a
motion seeking vacatur or file amicus briefs, but they may not have either the
resources or the knowledge that would enable them to do so. This is           
particularly significant given that "[d]estruction of an adverse judgment's   
collateral estoppel effect is the most common reason for a party to seek      
vacatur." [FN418] Then there are the effects produced by the parties          
themselves. Neary, who had won at trial, was a classic one-shotter litigant, a
cattle rancher who had claimed defamation by a veterinary report published by 
the University of California and written by veterinarians employed by the     
university. The university veterinarians had investigated the death of        
hundreds of Neary's cattle after they had been sprayed with pesticide by state
and federal agricultural agencies and blamed Neary's farm management rather   
than the pesticide. He won, to the tune of seven million dollars. In his      
concurrence, Justice Mosk identified a class of likely beneficiaries of       
stipulated reversal--unsuccessful defendants in products liability suits--and 
a class of those whose interests would likely be sacrificed *1508 because a   
"victorious plaintiff would be [so] eager to collect on the judgment that he  
or she would give scant consideration to its potential effect on other        
victims" [FN419]--other "one-shotters."

  In addition to the "in-principle" criticisms of depublication discussed     
supra, there are also troubling critiques that point to patterns of structural
discrimination against particular groups in society. While the detailed       
archival work remains to be done that might establish what specific effects   
depublication might have had on the narrowing of California law, there is some
evidence that it operates structurally to subordinate those already           
marginalized beyond that relating to cultural defenses, discussed supra.

  Barnett's thesis is that the 1990 rule change and a series of subsequent    
decisions mean that depublication is ceasing to be of practical effect, that  
the system of depublication, left to itself, will deconstruct itself. [FN420] 
He predicted in 1993 that the adoption of Rule 979(e), stripping depublication
of its meaning, would increasingly "reduce[] the value of depublication as a  
managerial tool." [FN421] A year later he chronicled evidence that            
depublication "appears to be breaking down," [FN422] based on evidence that   
courts were finding ways to refer to and sometimes cite depublished opinions  
and that the California Supreme Court had provided evidence that depublication
meant what the new rule implied--nothing--because it had held in favor of     
lines of authority it had depublished and those it had left in place while    
depublishing opposing authority. [FN423] However, his analysis of the opinions
he cites in support of these claims is both purely formalistic and            
extraordinarily decontextualized, failing to note that the effect of          
depublication in the cases he cites as evidence is to further disadvantage the
disadvantaged. The termination of parental rights requires only a             
preponderance of the evidence; [FN424] the case holding that it required the  
higher clear and convincing evidence burden be met was depublished. [FN425]   
Its sole significance from Barnett's perspective is that the opinion--that    
lowered the burden on the state when it sought to remove children from their  
parents--identified by party name (but did not formally cite) the dissent in  
the previous, depublished opinion, which had likewise decided that parental   
rights were limited in this way. [FN426] Barnett's analysis does not register,
however, that as *1509 poor and minority parents are disproportionately       
negatively affected by decisions to circumscribe or terminate their parental  
rights, depublication operated here to disproportionately affect them to their
detriment. [FN427] One-shotters other than poor individuals, such as indigent 
prisoners, social security plaintiffs, government employees, and the victims  
of civil rights violations are also systematically detrimentally affected by  
the practices of private judging.

  Fisch has recognized the increasing prevalence of "vacatur and related      
processes" in environmental litigation. [FN428] This happens because the      
"[p]ublic condemnation of defendants found liable for environmental damage"   
prompts them to use vacatur "to preserve [their] good name." [FN429] In       
addition, "Like products liability and other mass torts, environmental cases  
frequently involve a single incident or transaction that has allegedly caused 
harm to a large group of plaintiffs," [FN430] who will lose the benefit of    
collateral estoppel of the polluter's denial of liability if the polluter can 
purchase agreement to a request for vacatur from the initial plaintiff at no  
risk, because settlement is conditional on the court's acceding to this       
request. [FN431] More significant still, given that environmental law         
precedents "are particularly valuable because they frequently involve         
difficult questions of law and fact" [FN432] such as statutory interpretation 
and contract interpretation, is the loss to precedent and the retardation of  
the development of case law caused by vacatur: [FN433] 
    The ability of litigants to retard the development of the law by vacating 
judicial decisions offers a particular opportunity for manipulation in        
environmental litigation. Unlike many areas of the law in which litigation is 
a one shot, isolated event in the life of the parties, litigants in           
environmental litigation are frequently involved in repeated similar cases.   
Such "repeat players" include manufacturers of hazardous substances, such as  
toxic chemicals, and insurance companies who are drawn into litigation when   
their policies cover instances of pollution or clean-up costs. For these      
litigants, environmental litigation involves more than a resolution of        
specific *1510 transactions; it involves the development of legal doctrine    
which will continue to govern their rights and responsibilities. Under these  
circumstances, the repeat players have strong financial incentives to monitor 
the development of the law and to pay to have unfavorable decisions removed   
from the books, so that they can convincingly relitigate the issue and argue  
that the weight of authority is on their side. Few judges appear troubled by  
these transparent efforts to manipulate the weight of authority. [FN434]

  She raises similar concerns about its effect on stockholders' and consumers'
rights in securities fraud, takeover, and tender offer litigation. [FN435]    
Mass tort cases outside the realm of environmental law are likewise sites     
where vacatur will frequently be sought by powerful repeat players. [FN436]

  Depublication also worked against a landowner who objected to logging on an 
adjacent property, holding him to tight procedural rules (although the court  
of appeals in this case allowed the landowner to rely on the long line of     
precedent that was closed off to subsequent litigants as a result of the      
decision). [FN437] From Barnett's perspective the significance of this case is
solely that the court "appears to have relied on a depublished case without   
citing or even naming it." [FN438] The broader significance of Dakin in this  
context, unregistered by Barnett, is twofold. First, the case involved        
litigation by an individual landowner against a public authority and a        
corporation about a logging permit granted in relation to land adjoining his  
under a statutory provision that allowed the public authority to exempt the   
company from having to prepare an environmental impact statement in relation  
to the logging project. [FN439] Second, as the court notes, the application of
the relevant procedural rule to timber harvest cases has been the subject of  
some confusion in the past. 
    Several years ago, when this court first addressed the issue, we filed an 
opinion ruling the statute inapplicable. This opinion was the only law on the 
subject and was no doubt relied on by parties to timber harvest cases.        
Although that opinion was ultimately depublished by the Supreme Court, the    
depublication order cannot be "deemed an expression of opinion of the Supreme 
Court of the correctness of the result reached by the decision . . . ." In    
light of this past confusion and reliance on our previous opinion, and        
particularly in light of the severe results of noncompliance [with the        
procedural rule], the interests of fairness require that our decision operate 
prospectively only. [FN440]

  While this history of precedential instability is not as egregious as those 
cases *1511 where courts use unpublication as a means of deciding similar     
cases differently, the quotation nonetheless reflects a judicial habitus,     
implicit also in Rule 979(e) itself, that is remarkably unconcerned about the 
cost to predictability exacted by the practices of private judging.

  Just as the poor and other comparatively powerless litigants are            
disadvantaged by unpublication, depublication, and stipulated withdrawal of   
judicial opinions, so repeat players and the privileged, then, are advantaged 
by the practices of private judging. Robel argues that repeat-player litigants
are advantaged by their unequal access to unpublished opinions and thus to the
actual thinking and practices of the judges in whose courts they litigate.    
[FN441] She notes: 
    The advantages of this access are exaggerated because unpublished opinions
tend to cluster in subject-matter areas that pit frequent litigants against   
those litigants Marc Galanter has dubbed "one-shotters." These areas include  
criminal appeals, social security cases, and immigration cases, and in these  
sorts of disputes it is unlikely that the same ability to monitor unpublished 
opinions exists on both sides. [FN442]

  Her study demonstrated that these advantages were exacerbated by the fact   
that in many of the areas of law where unpublished opinions proliferate, a    
federal government agency is always a party to the litigation and that as a   
result they are often automatically provided with copies of opinions by the   
courts, maintain archives of these opinions, circulate them to staff and      
routinely use them in their work, sometimes maintain elaborate indexes of     
unpublished opinions, and frequently move for publication of opinions         
favorable to them. [FN443] This last phenomenon, linked to the others,        
"allow[s] frequent litigants to stack the precedential deck." [FN444]

  In the case of unpublication, in contrast to cases involving prisoners, the 
poor, and civil rights plaintiffs; contracts, antitrust, and securities       
appeals are disproportionately likely to be "tracked" to oral argument after  
screening and thus to result in published opinions. The justifications for the
differences are that these cases "frequently raise difficult legal questions,"
whereas social security appeals "rarely involve novel legal issues," rather   
requiring "examination of a sometimes lengthy record." [FN445]

  *1512 This discourse of the difference between "facts" and "law" and the    
privileging of the latter permeates apologist accounts of the practices of    
private judging in the U.S. courts generally, and forms the basis for the     
designation of decisions as "not for publication" in particular. It suggests  
an understanding of the operation of the common law that has a distinctly     
civil law flavor. It is rule driven, and as a practical matter marginalizes to
the nonargument/nonpublication track the claims of those already on society's 
margins, who either appeal pro se or cannot afford expensive lawyers who "play
for rules," or whose legal problems lie in matters of fact, such as in the    
interactions between prison officers and indigent incarcerated persons, or    
between federal civil servants and those citizens seeking social security     
benefits.

  The most obvious and one of the most frequent criticisms of stipulated      
vacatur or reversal is that "the procedure allows wealthy, repeat litigants to
buy their way out of an adverse ruling." [FN446] Judges have described it as  
"objectionable" and unjustifiable, turning on "mootness achieved by purchase."
[FN447] As Justice Kennard put it with characteristic pungency: "A judgment   
duly rendered by a court of this state is a matter of some gravity, not a     
trifle to be annulled for no better reason than that one party wishes it and  
has purchased the other party's acquiescence by a substantial cash            
settlement." [FN448]

  Fisch has catalogued vacatur's use in order "to remove precedents important 
to public interest litigation." [FN449] As the post-Bonner Mall reduction in  
grants of vacatur pursuant to settlement has not affected cases where a       
federal government agency is a litigant, this critique seems persistently and 
troublingly valid.

  Post 9/11, the persisting tendency of vacatur to shape precedent in favor of
the government may be of special concern. Motta v. District Director of I.N.S.
saw the First Circuit, in a creative end-run around Bonner Mall, [FN450]      
invite the I.N.S. to settle on appeal, exchanging a stay for the vacatur of an
opinion that would likely have allowed subsequent habeas litigants alleging   
due process violations stays on deportation orders. [FN451] The federal       
government has filed *1513 amicus briefs supporting vacatur, the Solicitor    
General has expressed approval of it, [FN452] and the government has          
"unsuccessfully attempted to use vacatur to expunge a judgment limiting the   
state secrets doctrine." [FN453]

  The government is not the only significant repeat player that advocates in  
favor of stipulated vacatur. It is supported by "the Product Liability        
Advisory Council (whose corporate members include . . . Eli Lilly, Dow        
Chemical, Johnson Controls, Philip Morris, and U.S. Tobacco)." [FN454] And    
there are collateral benefits to repeat players who benefit from vacatur:     
"There is clear evidence of insurance companies purposefully using vacatur" to
"eradicate or at least retard the development of unfavorable rules and then   
argue to the courts that the weight of authority is in their favor." [FN455]

  The procedural changes made to the depublication practice in California both
provide additional evidence of the ways repeat-player litigants are able to   
use the practices of private judging to their advantage and show how          
structural subordination produced by this institutional practice operates in  
"invisible" discriminatory ways. Rule 979 was proposed not by the California  
Supreme Court itself but by a lawyer in Appellate Defenders, Inc., [FN456] a  
nonprofit law practice in San Diego that ran the appointed counsel system for 
the California Court of Appeals, Fourth Appellate District, a classic         
repeat-player/institutional litigant who likewise characteristically had      
disproportionate informational capital in relation to unpublished,            
depublished, and withdrawn opinions. He was prompted to do this by the        
unpublication of a decision that favored his practice, "on his opponent's     
request and without notice to him that such a request had been made." [FN457] 
Equally egregious, the unpublication that prompted the rule change followed   
the denial of a petition for review of the decision by a deputy attorney      
general, denied because it was not timely. [FN458] Similarly, it was not a    
California Supreme Court justice, but a member of one of the appellate *1514  
courts that depublication disciplines in order to narrow California law, who  
"went public" (at least until he was censored and censured by the California  
Supreme Court via depublication of his critical opinion) about ex parte       
communications with the supreme court in pursuit of depublication.

  The ex parte interventions in favor of depublication that were prevalent    
before the adoption of Rule 979 were characteristically staged by             
repeat-player lawyers acting for repeat-player litigants. There is nothing to 
suggest that the situation is any different today. These lawyers have the     
expertise to attempt to manipulate the process in this way, and it serves     
their interests and/or those of their clients, who are "[g]enerally . . .     
institutional litigants with a primary goal of preventing adverse case law    
from ever having a destructive precedential effect on their interests."       
[FN459] Some of these lawyers no doubt were like the Appellate Defenders, Inc:
Repeat-player lawyers who like other competent appellate practitioners had    
learned to become "expert [] at engineering the depublication of an opinion"  
and used it to benefit clients--there appellants in criminal cases--who may or
may not have been repeat players. More often they were repeat-player lawyers  
"representing large institutional litigants with broad-based economic or      
social concerns," like that paradigm of the repeat- player litigant, the      
insurance industry, [FN460] or specialist appellate practices like Horvitz and
Levy of Encino, which ill-advisedly touted in promotional material "the cases 
it has gotten decertified" [FN461] for the benefit of clients not involved in 
the relevant litigation, until the attention of California Lawyer [FN462]     
caused the senior partner to make another unwise disclosure in print, this    
time to an enterprising law student at Western State University College of    
Law, that "the decertification list should not have been included with the    
promotional materials," rather being "something we prepared for our           
institutional clients who are interested in depublication." [FN463] And there 
are "conservative advocate[s]" like the Pacific Legal Foundation, which often 
requested "review of opinions found to be adverse to conservative interests   
or, in the alternative, urging depublication." [FN464]

*1515 C. Responses to Counterarguments

  Reynolds and Richman summarized the criticisms of the justifications for    
contemporary unpublication and the counterarguments against it relatively     
early in its history. [FN465] They identify two conventional justifications:  
(1) an argument for limited publication (based on premises (a) that "[n]ot all
appellate opinions need to be published," (b) that to publish all of them     
would be "excessively costly," and (c) that the precedential value of an      
opinion can be determined before it is written) and (2) "arguments for        
no-citation." [FN466] They also identify the shortcomings in the              
justifications: the bases for distinguishing publishable opinions from others 
are flawed, unworkable, and suffer from tunnel vision; there is no evidence   
that establishes that unpublication in fact improves judicial productivity;   
evidence exists that precedential opinions are frequently unpublished; and    
even assuming citation bans are economical, they inevitably produce           
unfairness. [FN467] Finally, they advance two counterarguments against        
unpublication: It results in "a pernicious diminution in both judicial        
responsibility and judicial accountability." [FN468]

  The justificatory discourses on the quality of unpublished opinions are also
often internally inconsistent. Some of them are actively disingenuous. For    
example, Judge Haynsworth reasoned that unpublished opinions should not be    
cited to the court that issued them because of their lack of quality. That    
quality, as he did not acknowledge, was a matter for which the Fourth Circuit 
itself was responsible, as it developed the "screening" process that resulted 
in pro se prisoner postconviction appeals, and then a larger class of cases,  
being decided without "the assistance of the bar." [FN469] Additionally, he   
reasoned that noncitation of unpublished opinions was appropriate because     
"they are unpublished and generally unavailable to the bar, [and] access to   
them is unequal and depends upon chance rather than research." [FN470] This   
justificatory discourse does not register that unequal access, used to justify
unpublication, was in fact produced by the court's unpublication processes.

  What do we know about problems of preferential access to unpublished        
opinions by institutional litigants and those lawyers who can today afford    
extensive Westlaw and LEXIS research? As early as 1973, the Advisory Committee
on Appellate Justice organized by the Federal Judicial Center *1516 registered
that a "major problem" of unpublication was unequal access, which meant that  
better-resourced law firms would be able to research the actual body of case  
law on a relevant issue. [FN471] Its solution was to recommend citation bans. 
[FN472] What is now clear is that citation bans have not solved the           
significant problem of unequal access, [FN473] a problem exacerbated by the   
courts' preferential treatment of Westlaw and LEXIS since the development of  
their expensive online research databases. [FN474] Indeed, "they . . .        
exacerbate the advantages that the selective publication plans give frequent  
litigants." [FN475]

  The storage costs and technological issues of indexing that are officially  
said to have given rise to unpublication have been made potentially irrelevant
by Internet legal research databases supplemented by the combination of       
Boolean searching techniques and online versions of the West Digest System and
citators. [FN476] I use the qualifier because actual irrelevance would require
(1) the end of privileged access to Westlaw and LEXIS and (2) the provision by
the courts of both complete online databases of opinions and effective        
searching tools. At present, as discussed above, there is ample evidence that 
courts are not willing to take the steps that would in fact make what they do 
public. The chair of the Federal Rules of Evidence Committee has described    
much of what is theoretically available as "needles in haystacks." [FN477]

  What are the other "technological" arguments presently mustered in favor of 
unpublication? First, that unpublished opinions are all available. As         
discussed in Part I, supra, while potentially this could be the case, it is   
not the fact at present. Further, availability only becomes meaningful with   
the availability of searching tools that work, whether they are in the form of
Boolean or natural language searching of computer or Internet databases, or in
the form of West's Digests or the various indexing tools provided by those    
private publishers who publish unpublished opinions in specialist areas or    
jurisdictions.

  Next, there is the claim that the cost of legal research to lawyers and     
their clients would be increased if they had to search "useless" cases with no
new legal rules or no application of stable legal rules to novel facts.       
[FN478] The related justification advanced by apologists for contemporary     
unpublication is that because proliferating technology results in excessive   
numbers of opinions being accessible to researchers, precedent would be       
destabilized were *1517 unpublication (and its attendant citation bans) ended.
[FN479] It appears that the combination of online electronic databases, the   
private libraries of unpublished precedent kept by repeat-player litigants,   
and the enterprising efforts of the lesser commercial legal publishers [FN480]
have solved the problem of volume from the bar's perspective. Arguably, too,  
practicing lawyers have less of an investment in the iron control of the      
interpretability of precedent than do (some) judges. Indeed, the bar in the   
form of the A.B.A., the American College of Trial Lawyers, and many others    
have gone on the record about the problems unpublication causes them          
professionally, asking that it be ended. [FN481] The evidence is that         
substantial numbers of lawyers and judges read unpublished opinions; [FN482]  
that "attorneys do not share the view that there are too many precedential    
opinions available;" [FN483] and that lawyers reject the view that reviewing  
unpublished opinions is excessively onerous. [FN484]

  Then there are more substantive justifications for unpublication based on   
understandings of precedent. DuVivier's uncritical insider perspective reads: 
    Regardless of whether an opinion is actually published in a book, it is   
helpful for courts to distinguish between those opinions that are potentially 
more valuable for the analysis of future cases . . . and others that are more 
routine . . . . In this way, a subsequent court can take the prior court's    
determination of the significance of its decision into consideration when     
performing its duty "to determine the law." Using the traditional             
understanding of precedent to mean simply that a line of prior cases should   
furnish a basis for determining later cases, a case should not be arbitrarily 
controlled by one prior decision simply because that decision came before it. 
[FN485]

  Even if we ignore the logical inconsistencies between the two aspects of    
DuVivier's justification for unpublication--courts can tell in advance what is
genuinely precedential but should not be controlled by the priority on which  
common law precedent fundamentally depends for its authority--her confidence  
in the ability of courts to sort the precedential wheat from the chaff is not 
shared by a range of influential commentators. Judge Arnold has noted that    
"many cases with obvious legal importance are being decided by unpublished    
opinions." [FN486] Likewise in Wilson v. Layne, [FN487] the Supreme Court,    
*1518 in finding, inter alia, that law enforcement officers bringing reporters
into private houses during the execution of a search warrant violated the     
Fourth Amendment, noted: 
    [Prior to this decision] there were no judicial opinions holding that this
practice [was] unlawful . . . . The only published decision directly on point 
was a state intermediate court decision which, though it did not engage in an 
extensive Fourth Amendment analysis, nonetheless held that such conduct was   
not unreasonable . . . . From the federal courts, the parties have only       
identified two unpublished District Court decisions dealing with media entry  
into homes, each of which upheld the search on unorthodox non-Fourth Amendment
right to privacy theories. [FN488]

  The United States Supreme Court also roundly criticized the assigning of a  
precedential opinion to the "not for publication" category in one of the many 
additional cases in which it has reviewed unpublished opinions, [FN489]       
opining that "[w]e deem it remarkable and unusual that although the Court of  
Appeals affirmed a judgment that an Act of Congress was unconstitutional as   
applied, the court found it appropriate to announce its judgment in an        
unpublished per curiam opinion." [FN490]

  Judge Kozinski's overt justification for continuing contemporary            
unpublication--one based, like DuVivier's, on a rule-bound understanding of   
precedent--is linked to his argument about quality, one frequently advanced in
defense of unpublication doctrine. Because of limited resources, a feature of 
the federal courts that he like other federal judges has been at pains to     
protect, [FN491] they can "select [only] a manageable number of cases in which
to publish precedential opinions," [FN492] he argues. The quality argument is 
fraught with inconsistency, in Hart as elsewhere. On that issue, DuVivier, the
former *1519 Reporter of Decisions for the Colorado Court of Appeals, who     
administered that court's system of institutionalized unpublication, argues   
that "although the courts may spend less time on the unpublished opinions, if 
my experience as the Reporter of Decisions for the Colorado Court of Appeals  
is representative, the scrutiny and analysis unpublished opinions undergo is  
sufficient to satisfy the judicial obligations imposed by the Constitution."  
[FN493] Judge Kozinski's argument in favor of persisting with                 
institutionalized unpublication is perhaps most strained when he addresses    
criticisms of the quality of unpublished opinions, trying to harmonize the    
logical conflict between claims for adequate quality in unpublished opinions  
and the efficiency-based justification for institutionalized unpublication    
(holding that judges can only craft precedential-quality opinions in a        
proportion of cases), which he also deploys in Hart [FN494] and elsewhere:    
[FN495] 
    That a case is decided without a precedential opinion does not mean it is 
not fully considered, or that the disposition does not reflect a reasoned     
analysis of the issues presented. What it does mean is that the disposition is
not written in a way that will be fully intelligible to those unfamiliar with 
the case, and the rule of law is not announced in a way that makes it suitable
for governing future cases. [FN496]

  One way to respond to the justificatory discourse claiming that only some   
opinions can be sufficently finely crafted to merit precedential status is    
Hangley's robust one: 
    The decision to cite or not to cite an opinion should not depend on its   
merit as literature but on its merit as a reasoning tool . . . . The process .
. . is not about the sensibilities of judges as authors; it is about building 
the corpus juris and . . . doing justice on the most informed possible basis. 
[FN497] There is a range of other responses, as well.

  In Rules of Tenth Circuit the dissenting judges criticized the circuit's    
nonpublication rule on grounds that likewise call into question both the      
justification that courts can determine the precedential value of opinions in 
advance and the mutually incoherent quality grounds. The "nature of precedent"
argument for selective publication addressed by the dissenters in Rules of    
Tenth Circuit is also advanced in favor of depublication: that the cases not  
published are not precedent because they merely "elaborate the design and     
symmetry of the published law by filling in its factual applications." [FN498]
The problem with this, however, is that it understands precedent as confined  
to new rulemaking, which recognized the tort of negligence for the first time,
is precedent, but that the much more frequent situation (and one that some    
would *1520 argue is difficult to demarcate from the "rulemaking" kind of     
precedent except at this extreme) of application of more or less settled      
"rule" to novel "facts" is only precedent for certain kinds of facts. [FN499]

  The dissenters in Rules of Tenth Circuit recognized that the precedential   
value of a decision often emerges after its rendering, [FN500] and they       
labeled "wholly unpersuasive" arguments "that many of the court's rulings are 
not significant precedents and are in fact essentially decisions on factual   
issues only, or are merely applications of clearly established legal          
principles not meriting publication or citation." [FN501] As this suggests,   
they conceived of precedent broadly: "Each ruling, published or unpublished,  
involves the facts of a particular case and the application of law--to the    
case. Therefore all rulings of this court are precedents, like it or not, and 
we cannot consign any of them to oblivion by merely banning their citation."  
[FN502] Raising the issue of constitutionality of citation bans on due        
process, equal protection, and judicial power grounds, as well as on less     
specific grounds of arbitrariness and irrationality; [FN503] touching on the  
tendency of unpublished opinions to create inconsistency in the application of
the law; [FN504] and dismissing the argument that the noncitation ban prevents
unequal access, [FN505] they called the "polish" justification currently      
championed by Judge Kozinski "the most untenable" of the justifications       
advanced for noncitation of unpublished opinions: 
    [T]he basic purpose for stating reasons within an opinion or order should 
never be forgotten--that the decision must be able to withstand the scrutiny  
of analysis, against the record evidence, as to its soundness under the       
Constitution and the statutory and decisional law we must follow, and as to   
its *1521 consistency with our precedents . . . . [FN506]

  Directly addressing the ethical aspects of opinion writing, they concluded  
that "[o]ur orders and judgments, like our published opinions, should never be
shielded from searching examination." [FN507]

  It is worth quoting here at some length Judge Wald's account of the process 
and ethics of writing both published and unpublished opinions. She says, 
    [The opinion-writing process,] more than the vote at conference or the    
courtroom dialogue, puts the writer on the line, [and] reminds her with each  
tap of the key that she will be held responsible for the logic and            
persuasiveness of the reasoning and its implications for the larger body of   
circuit or national law. Most judges feel that responsibility keenly; they    
literally agonize over their published opinions, which sometimes take weeks or
even months to bring to term. It is not so unusual to modulate, transfer, or  
even switch an originally intended rationale or result in midstream because   
"it just won't write." But writing to explain a preordained result with no    
concern for its precedential effect under a self-imposed time constraint . . .
is something else entirely, inviting no backward looks or self-doubt . . . .  
[U]npublished decisions . . . are the product of a different and              
much-abbreviated decisionmaking process. [FN508]

  Judge Kozinski's discourse of polish or quality [FN509] is fundamentally    
different from Judge Wald's legal realist version of judging ethically through
writing. It is in reality a discourse of control. As Judge Kozinski and his   
fellow Judge Reinhardt wrote, lawyers should not try "to extract from         
[unpublished opinions] a precedential value that we didn't put into them."    
[FN510] One could take a "hard" (what is often described as) "postmodernist"  
position and argue that such a constraint is impossible because opinions are  
always interpretable. [FN511] A legal realist might similarly argue that what 
happens in the courts every day shows that precedents are always being        
interpreted, that this is what lawyers do. In either case one might conclude  
that scarce judicial resources are being squandered on a pointless exercise.  
[FN512] This tentative conclusion, however, is troubled by the evidence that  
unpublication does the work of structural subordination.

  In addition, Judge Kozinski's discourse of differential polish seems *1522  
untenable given the vast numbers of unpublished opinions that give either no  
reasons for the court's decision [FN513] or no meaningful reason for it.      
[FN514] As Dragich [FN515] contends, "The application of the doctrine [of     
stare decisis] usually turns on a determination of the identity between the   
two cases--a determination that cannot be made unless the facts and reasoning 
of the prior case are known." Reynolds and Richman bluntly dispute that       
unpublished opinions are of even adequate quality, citing a failure of a      
significant proportion of those produced by the federal courts of appeals to  
meet minimum standards [FN516] of giving "some indication of what the case was
about and some reason for the result:" [FN517] "It is not difficult to        
understand why unpublished opinions are dreadful in quality. The primary cause
lies in the absence of accountability and responsibility; their absence breeds
sloth and indifference. Moreover, a judge's mastery of the case is reduced    
when she does not publish." [FN518] Chief Judge Markey of the Federal Circuit 
has described them as "junk." [FN519]

  None of the critics, however, has interrogated the resources of judicial    
time expended in running the unpublication machine, especially in those       
jurisdictions where it is run by committee. Such partial accounts of these    
processes as they exist suggest that they are an enormous drain on court      
resources. [FN520]

  As with unpublication, when measured against the fundamental criticisms of  
depublication and the questions raised by the current information on          
depublication's material practices, the justifications for the practice seem  
both thin and debatable. As with unpublication, efficiency is repeatedly      
touted as grounds for depublication. [FN521] Clearly, an appeal of an         
appellate court decision to the California Supreme Court followed by a        
reversal is a more time-consuming process for controlling the development of  
the law than depublication. However, it has the advantages of transparency and
clarity because, as Biggs notes, in that case the supreme court gives reasons 
for its *1523 differences with the relevant appellate court. [FN522]

  Despite arguments for the practice that rely in significant part on         
depublication's efficiency, depublication uses resources that could be spent  
on actually deciding disputes and making law: The material practices involved 
in the depublication process, whatever they are (a matter that there is no    
published record about), if carefully and systematically done, as with        
institutionalized unpublication, likely take up as much if not more time than 
deciding to deny a petition for review. [FN523] And if depublication were     
abolished, not every appellate court decision would be appealed in turn to the
California Supreme Court. If depublication is as efficient as some claim it   
is, decisions to depublish may be unreliable because of insufficient analysis.
Further, there are internal inconsistencies in claims for depublication's     
efficiency: The low rate of depublication in Arizona contradicts the rationale
that the "expanding workload" of the court required adoption of the procedure.
[FN524] Similarly, the claims that caseload drives depublication are undercut 
by statistics revealing the California Supreme Court's techniques for reducing
workload. For example, it "refuse[s] to grant review in most cases" and       
resolves "a large number of original proceedings without written opinion (1204
cases in 1991 to 1992)." In the same year it "granted review in 99 cases,     
granted and held in 56 cases, and granted and transferred in 24 cases. It     
denied review in 3467 cases." [FN525] It appears, however, that just as with  
unpublication, control of the development of precedent, rather than           
efficiency, is what depublication really achieves. Berch rationalizes the     
practice of depublication on the joint bases that shaping the law is the      
supreme court's most important function and that giving reasons for           
depublication would undermine the saving of resources depublication achieves. 
Depublication is "an efficient way of keeping the law clean." [FN526]

  Other utilitarian justifications for the institutionalization of private    
judging practices in the U.S. courts have less obvious weaknesses than the    
claims based on efficiency and quality. There is an argument, for example,    
that because the precedential value of trial court decisions, most often      
affected by stipulated vacatur, is low, the issue lacks real significance.    
However, that argument fails to register that as in all the practices of      
private judging, vacatur at the trial court level exacerbates the effect of   
the lack of precedential status of trial court decisions: Enabling judges to  
treat similarly situated litigants differently, *1524 whether by accident,    
through the ignorance produced by the confluence of "disappearing" decisions  
and the lack of research skills of court-employed lawyers, or by design.

  The strongest utilitarian argument in favor of stipulated vacatur is that it
promotes settlement, which both reduces court dockets and is otherwise        
efficient. [FN527] Judith Resnik's is the most sophisticated and nuanced of   
the positive analyses of vacatur by reason of settlement. [FN528]

  The competing claims for and against the desirability of stipulated vacatur 
are traditionally cast as balancing public and private models of dispute      
resolution, concentrated in the competing demands of the principle of finality
of judicial decisions on the one hand, and the importance of promoting        
settlement and honoring the desire of litigants to exit the court system on   
the other. [FN529] To the extent that Resnik is in fact making an argument in 
favor of stipulated vacatur, that argument hinges on six points. She contends 
that the effects of vacatur are mixed, making a detailed case against the     
argument that vacated decisions invariably "disappear" or lose their          
precedential value. [FN530] She draws analogies between vacatur and other     
judicial practices, which analogies militate against it being represented as  
aberrant; [FN531] mounts arguments that its burdens/benefits calculus is      
complex and ambiguous; [FN532] and suggests that opinions that are the subject
of settlement stipulations of vacatur are flawed. [FN533] She argues that the 
"secrecy effect" of stipulated vacatur is both overestimated and no different 
than the secrecy that attaches to other aspects of litigation. [FN534]        
Finally, she essays an analysis of the effect of courts' granting motions for 
stipulated vacatur on the balancing of public and private models of dispute   
resolution, placing it in the context of the contemporary institutionalization
of the drive to settlement. [FN535]

  *1525 Her larger concern in the article is not utilitarian, however, but    
philosophical: What, she asks, is the contemporary role of the judge and of   
the courts, given that "[j]udges themselves have played a central role in     
diminishing [the prestige of the judicial system] and in dislodging reasoned  
adjudication from its place in the hierarchy," [FN536] via processes that     
include depublication, unpublication, and amendment of opinions? [FN537] Is   
routinely granting motions for stipulated vacatur an "act of silence, of power
that negates what judges and jurors have said the law requires . . . cutt[ing]
off . . . conversation . . . with the public"; [FN538] or is it the product of
a "conversation with litigants" that listens to their desires? [FN539]

  Resnik's assumption of a homogeneous class of litigants and one of citizens,
implicit in this binary, invites the kind of complicating of binaries that    
Resnik herself does repeatedly and to effect earlier in her analysis.         
Institutional litigants will often have enormous economic and political clout 
that puts them at a power advantage in relation to the members of the judicial
branch and its institutions. Individual litigants are less likely to have such
power and far more likely to be at a significant power disadvantage if they   
are members of subordinated groups. Further, answering "no" to the possibility
that routine vacatur cuts the courts off from the public depends on her highly
contestable claim that vacated opinions are readily available.

  As to Resnik's second alternative, the "conversational" model which casts   
routine vacatur in a positive light, her earlier qualified support for        
stipulated vacatur itself concedes that "were it clear that vacatur on consent
distributed benefits unevenly and in a manner different from other settlement 
procedures, its use should be curtailed." [FN540] The definitive quantitative 
research that would establish that routine vacatur operates in systematically 
discriminatory ways remains to be done. However, the evidence of unevenly     
distributed benefits is significant. More than this, however, the fact that so
many scholars and practitioners have enough evidence to suggest that there is 
an equality problem with stipulated vacatur itself, even if these claims are  
untrue, raises an even more significant problem: that of legitimacy. Justice  
must be seen to be done, as well as be done in fact, to establish the         
legitimacy of the courts and thus of the rule of law.

  Resnik's second requirement for abandoning routine vacatur, which is that   
vacatur has greater discriminatory effect than other settlement procedures, is
even more problematic: that "'haves' come out ahead" in various aspects of the
legal system is not enough in itself to justify additional practices that     
produce the same result. Further, as this Article suggests, and as Resnik     
herself appears *1526 indirectly to concede, [FN541] if one broadens the lens 
to include not only effects of settlement but other aspects of the operation  
of the U.S. system of precedent, the inequality effect becomes more           
problematic, moving categorically from the soi-disant private sphere of       
settlement of litigation into the public sphere of the administration of      
justice.

  While Resnik's analysis troubles the underlying assumptions and validity of 
much of the evidence that contests claims that vacatur produces settlement,   
[FN542] then, there is enough of this evidence from enough well-informed      
sources to raise the legitimacy question yet again, and to make it compelling 
given the evidence of vacatur's structural effects of subordination. A        
discussion of some of the most thought provoking of this evidence follows. Its
emphasis on dissenting voices is strategic, emphasizing the potential power of
legal dialogue to shape the law, were the monologic strictures imposed by the 
practices of private judging in the courts to end.

  The dissenting Justices in Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.    
Philips, Co., opined:

  [T]here is no evidence that the number of settlements will be appreciably   
increased by such a policy. Indeed, the experience in California demonstrates 
that the contrary may well be true. Moreover, the facts of this case indicate 
that any benefit in the form of saving work for the appellate court will      
probably be offset by the added burdens imposed on trial courts in later      
proceedings. On the other hand, it seems evident that a regular practice of   
denying these motions unless supported by a showing of special circumstances  
will create added pressure to settle in advance of trial. [FN543]

  Likewise, Judge Kennard, in dissent in Neary, opined that stipulated vacatur
 "tend[s] to . . . discourage prejudgment settlements." [FN544] Barnett       
provides some quantitative support for this critique [FN545] and notes that   
"pretrial *1527 settlements . . . save substantially more resources than do   
settlements on appeal. In the absence of further evidence pointing the other  
way, this fact should tip the burden of proof against the proponents of       
stipulated reversal." [FN546] Fisch concludes that courts "routinely permit   
[ting] post-settlement vacatur of judgments . . . may encourage litigants to  
delay settlement . . . result[ing] in a waste of judicial resources." [FN547] 
Her analysis of the costs and benefits of stipulated vacatur to litigants is  
as follows: 
    Vacatur enables an unsuccessful litigant to obtain the collateral benefits
of reversal, such as removal of the decision from the record books and        
destruction of any collateral estoppel or res judicata consequences, in       
exchange for the settlement price. In effect, if a litigant is certain that   
the court will subsequently vacate an adverse judgment, the availability of   
vacatur makes going to trial cost-free, apart from litigation costs. A        
litigant may roll the dice, gamble on a favorable judgment and, if            
unsuccessful at trial, settle the case after judgment and move for vacatur.   
After settlement and vacatur of the trial court decision, the litigant will be
no worse off than if he or she had avoided a final judgment by entering into a
pretrial settlement. [FN548]

  Fisch notes that vacatur "does not prevent the parties from settling the    
litigation; rather, it simply prevents the parties from agreeing to require an
affirmative judicial action--vacatur." [FN549] Her detailed economic analysis 
of the costs of stipulated vacatur to the aim of encouraging settlement       
suggests that the practice actually "encourage[s] speculative litigation,"    
[FN550] reduces the likelihood of pretrial settlement of litigation, prolongs 
litigation into the appeals phase, [FN551] and has a range of collateral costs
to the presumed good of settlement, including enabling successful plaintiffs  
who agree to a request to stipulated vacatur as a condition of settlement to  
"appropriate[] part of the societal value of the judgment for . . . personal  
gain." [FN552] Making her critique of the "private interest in settlement"    
rationale for stipulated vacatur even more compelling is this additional fact 
raised by the loss of collateral estoppel: "The fact that there are third     
parties involved who are affected by vacatur demonstrates that the dispute is 
not a purely private matter between the two parties to the settlement."       
[FN553] As Barnett notes, applications for stipulated reversal "are by nature 
collusive," and in a formally adversarial system judges are neither           
well-equipped nor well placed to combine the inquisitorial and adjudicative   
role so *1528 as to discover and protect third-party interests in precedent.  
[FN554] This analysis applies equally to stipulated vacatur. Further, issue   
preclusion has an economic benefit of its own: [FN555] On the most basic      
level, it avoids future litigation, whereas stipulated vacatur produces       
ambiguity in the law that in turn encourages litigation. [FN556] Finally,     
"[t]he doctrines of res judicata and collateral estoppel are designed to      
preserve judicial resources by preventing relitigation of issues that had been
thoroughly aired in a prior proceeding." [FN557] Thus stipulated vacatur has  
multiple costs.
                                       
                       III. Current Prospects for Reform
  As noted in Part I, in the past three years there has been a flurry of      
reform activity directed towards both unpublication and depublication. Careful
analysis of each of these initiatives suggests that they are wholly inadequate
to address the problems caused by institutionalized private judging in the    
U.S. courts. Such movements to reform that have happened at the state and     
federal levels are piecemeal and seem largely ineffectual at best, cynical    
triumphs of form over substance at worst. As to the proposed change to the    
Federal Rules of Appellate Procedure, which would remove citation bans on     
unpublished opinions in all circuits of the United States Courts of Appeals,  
it seems highly unlikely that this current extremely limited proposal for     
reform of the unpublication system at the federal level will be successful    
given the processes involved and the opposition arrayed against it. Even if it
eventually comes to pass, the evidence suggests that it will not solve either 
the rule of law or structural subordination problems caused by                
institutionalized unpublication.

  Effective January 1, 2003, and following sustained media pressure, the Texas
Supreme Court, which had an eighty-five percent unpublication rate, [FN558]   
ended the practice of designating opinions of appellate courts in civil cases 
"not for publication," declining to do so in criminal cases apparently as a   
result of entrenched opposition by the criminal bench. [FN559] However, this  
reform may prove a matter of form rather than of substance. The court         
announced a distinction between "Opinions" and "Memorandum Opinions" which    
seems to preserve the published/unpublished distinction as it relates to      
precedential value, and which appears to guarantee that in "memorandum" cases 
only the briefest of reasons for judgment will be given. The rule provides    
that all "Opinions" (which may as a matter of construction of the rule exclude
"Memorandum Opinions") of Texas courts of appeals are "open to the public     
*1529 and must be available to public reporting services, print or            
electronic." Texas' no-citation rule was also modified to allow for citation  
of unpublished opinions with the notation "not designated for publication."   
[FN560]

  California's Court of Appeal has also recently begun posting all its        
unpublished opinions on its website but has made no move to allow citation of 
its unpublished opinions by litigants who appear before it. More recently     
still, the California Supreme Court, which "depublishes" what may be some of  
the more liberal of the Court of Appeal's controversial opinions, thus        
stripping them of precedential value and (at least until the Court of Appeal's
website initiative) making them either difficult to find or disappear from the
public record, [FN561] has announced that it will move away from its practice 
of keeping secret its rate of "depublication," and as of its 2003 statistical 
report will both "count depublications [and] compile them for the past 10 to  
15 years." [FN562] This development, however, may do little to reverse the    
(much more widespread) discriminatory effects of "unpublishing."

  Effective January 1, 2002, the D.C. Circuit revoked its no-citation rule,   
but still maintained the position that the court "sees no precedential value" 
in unpublished opinions. In light of its new Practice Handbook entry to the   
effect that counsel "will now be permitted to argue that an unpublished       
disposition is binding precedent on a particular issue," [FN563] this seems at
best paradoxical. If the political balance on the D.C. Circuit shifts, as it  
seems likely to do, this move may prove shortlived. Effective a day later, the
United States Court of Appeals for the Third Circuit, which before a critical 
study of its unpublication practices had led the nation in dispositions of    
appellate cases without any reasons or indeed any comment, [FN564] decided to 
post its opinions online. [FN565]

  In the same year the Subcommittee on Courts, the Internet, and Intellectual 
Property of the Committee on the Judiciary of the House of Representatives    
began hearings on unpublished judicial opinions. These were not directed      
towards the development of legislation, being "oversight" hearings, [FN566]   
and unsurprisingly, after a flurry of activity near the close of the One      
Hundred and Seventh Congress, none of the additional hearings anticipated have
so far been held. Connected with this process, the Justice Department proposed
a narrow *1530 amendment to the Federal Rules of Appellate Procedure allowing 
for citation by lawyers to unpublished opinions "only if" (1) it directly     
affects a related case, for example, by supporting a claim of res judicata or 
collateral estoppel, or (2) "a party believes that it persuasively addresses a
material issue in the appeal, and that no published opinion of the forum court
adequately addresses the issue." [FN567] In April 2002 the Advisory Committee 
on Appellate Rules "went on record as favoring" that proposal. [FN568] In any 
event, the proposed change to the Federal Rules of Appellate Procedure,       
documented in Part I, is narrower still, merely prohibiting citation bans in  
all federal courts. While the proposed change has survived the process of     
public commentary, it is not clear if the proposed change will receive        
institutional approval by the Judicial Conference, the Congress, and the      
Supreme Court. As documented in Part I, however, there are major and          
influential sources of opposition to even this modest suggested reform.

  If the proposed rule change does not go ahead, prospects for unpublication  
reform lie with the individual circuits, with a federal legislature that has  
already been "warned off" interference by Judge Kozinski [FN569] or with the  
Supreme Court, if it decides to grant certiorari and rule on the validity of  
unpublication the next time it has the opportunity to do so. Stipulated       
withdrawal in at least some of the federal courts was curbed to some extent by
the Supreme Court's involving itself in what it manifestly perceived as a     
threat to the integrity of the judicial system. However, in light of, for     
example, the Ninth Circuit's response to Bonner Mall and the general excepting
of the government from its precedential reach, the evidence is that the       
contemporary national judicial culture does not generally produce a developed 
consciousness of either actual or perceived bias in the operation of the      
courts or of complicity in the structural subordination of historically       
disadvantaged groups. This being the case, the potential effect of the Supreme
Court's involving itself in unpublication reform on the next occasion the     
opportunity presents itself may be limited, and not just because of its       
incapacity to have any direct effect on the way state courts do their         
business.

  Depublication is a practice with a much more limited reach, at least for    
now, than unpublication or stipulated withdrawal, but its silent bleeding     
beyond the jurisdictions where it is more or less officially practiced is a   
matter for concern, not least because of what it tells us about the national  
judicial habitus. *1531 California has at last been shamed or chivvied by     
decades of criticism from the bar and the academy into a grudging decision to 
release some information about how much of the output of California's         
appellate courts is depublished, and no more.

  More subtle but profound concerns are raised by the places and ways in which
the recent federal gestures towards unpublication reform have been conducted. 
The extreme modesty, both practically and intellectually, of the Justice      
Department's offerings do not stem merely from the ideology of its current or 
former leadership and the company it keeps in private: The D.O.J. is a major  
player in the unpublication and stipulated withdrawal business, and one that  
benefits from it. A certain blinkeredness about the ethics and possibilities  
of reform is, then, to be expected. The efforts of the Subcommittee on Courts,
the Internet, and Intellectual Property of the House Committee and the Federal
Judicial Conference's Judiciary Advisory Committee on Appellate Rules are more
disappointing still, the latter for an intellectual modesty--some might call  
it impoverishment--akin to that of the Justice Department, and the former for 
the remarkable shallowness of its witness pool.

  Professor Hellman's contribution is unexceptionable on the question of the  
range of problems stemming from the widespread practice of courts deciding    
cases without giving reasons, a practice of private judging dealt with only in
passing in this Article, although his recommendation [FN570] on this issue is 
surprisingly modest in light of his critique. However, he manifests a         
conservative pragmatism on questions including the nature of precedent and his
acceptance of the status quo as to "the realities of the process by which     
cases with unpublished opinions are decided." [FN571] Likewise, he holds the  
conservative judicial party line on the alleged general availability of       
unpublished opinions, [FN572] but his lengthy involvement with the federal    
judicial machine [FN573] renders this evidence of circumscription of critical 
vision unsurprising. The other witnesses who gave evidence to the Senate      
hearing were Judge Alito, Chair of the Advisory Committee on the Federal Rules
of Appellate Procedure, the insider's insider; and a species of Punch and Judy
representing the defenders and critics of unpublication in Judge Kozinski and 
Kenneth Schmier, Chairman of the self-styled "Committee for the Rule of Law," 
who while Judge Kozinski's equal as a proselytizer for his point of view, is  
not his equal in terms of institutional or other kinds of power.

  There were no judicial critics of unpublication, nor any of the most eminent
scholars or practitioners who have documented unpublication's inequitable     
effects or potential constitutional problems. Nor yet did the legislators hear
from those like Dean Robel or William Mills, who have *1532 recently adduced  
important factual evidence that undermines the current premises of both       
unpublication itself--because the practice of many lawyers and judges belies  
the claim that unpublished decisions are "nonprecedential"--and its           
apologists' paradoxical claim that it means nothing in practice in the age of 
Internet and other computer-assisted legal research.

  Most disappointing, perhaps, is the fact that the current proposal for      
reform of unpublication would be ineffective. First, Robel argues persuasively
that "differential access, with its attendant favoritism, would occur under   
almost any selective publication plan that also achieved the cost savings     
sought by the courts." [FN574] Even the service requirement included in the   
proposed new rule is easily evaded if repeat-player litigants don't cite      
unpublished authority but rather incorporate its logic into appellate         
argument, a practice that is presently widespread.

  Next, while experienced lawyers and judges can, by Robel's account,         
more-or-less readily familiarize themselves with unpublished authority, there 
is considerable evidence that the people who are writing the majority of the  
nation's judicial opinions are not so skilled. Other material practices of    
unpublication meriting attention from those charged with reform include a     
range of ethical questions, including those relating to the research          
responsibilities of attorneys in relation to the products of the practices of 
private judging and the problems posed for judicial ethics by the effective   
entrusting of the publication of the law of the land to duopolized commercial 
interests. These latter questions begin with but are not limited to the       
appropriateness of the degree to which West and LEXIS benefit from            
preferential access and treatment, and the rationality of that preferential   
treatment given the multiplying free and lower-cost online legal publishers.  
They extend to a thoroughgoing failure to grasp the possibilities that truly  
complete and effective self-publication on court websites might offer courts  
were they inclined and technologically literate enough to do so.

  Finally, there is no evidence that the broader issue of the structural and  
incremental privatization of judging in the U.S. courts via both the means    
examined here and those only mentioned in passing is attracting any           
attention-- let alone serious attention--from anyone in positions of          
institutional power.

  This Article is replete with data establishing that we cannot trust the     
judges when they tell us that the system of shadow precedent works equitably. 
Indeed, if some of the more ethically sensitive of those judges are willing to
admit "off the record" that they are disturbed by "secret judging," it is time
to deprive their less particular brethren of their complacency. It is also    
time for public questioning of the fitness for judicial office of those       
members of the judicial branch who claim overwork and the pressures of quality
control in the production of "real" precedent when they do not want additional
judicial *1533 appointments. After all, the history of steps to decrease      
jurisdictional workload by raising the monetary threshold for actions brought 
in federal courts does not support the contention that it was workload per se 
which led to the institutionalizing of unpublication in the federal courts,   
and if my modest anecdotal research among members of the Australian judiciary 
is any guide, their brethren in other first-world democracies, who            
characteristically rely much less heavily on judicial clerks and staff lawyers
than do U.S. judges, manage to discharge as much opinion writing work as U.S. 
judges do in total without relying on unpublication to justify problems of    
quality with the majority of their output. Likewise, efficiency claims for    
institutionalized depublication are unproven.

  What should be done to achieve the eradication of the scandal of private    
judging in the U.S. courts? First, we need to avoid placing poachers in the   
role of gamekeepers. This nation's lack of expert, well-resourced, standing,  
independent law reform bodies, like the Australian and Canadian models, has   
meant that reform thus far has been in the hands of partisan insiders with    
differing kinds of vested interests in maintaining the status quo, and the    
kind of tunnel vision that comes from a phenomenon not unlike "agency         
capture." As indicated by its choices of witnesses, the current House         
Subcommittee lacks the expertise to deal adequately with the problems caused  
by the practices of private judging, and is limiting its attention to only one
of them, and that only at the federal level. Further, as a practical matter,  
it lacks the power to counter the private efforts of some extremely           
influential players who steadfastly oppose any reform, not just a proposed    
reform that would fail to change the effects of structural subordination that 
unpublication inevitably causes. The evidence of active judicial opposition to
reform in the shape of the current proposed reform of the Federal Rules of    
Appellate Procedure and of the dominant national judicial habitus suggests,   
likewise, that the United States Judicial Conference is extremely unlikely to 
be an agent of change.

  If government is unwilling to invest in independent law reform, we might    
turn to the Federal Judicial Center and the Center for State Courts, the      
A.B.A. and the A.A.L.S., were they to undertake work of this scope and        
significance, and to retain or consult the independent experts that legitimacy
seems to demand if it is to be done effectively. That work might include the  
detailed and principled quantitative analysis that would confirm or deny the  
many arguments that the practices of private judging do more than appear to   
promote inequality before the law; ethnographic and comparative studies of the
material practices of private judging, including the output of judicial       
officers, the relationships between the courts and the legal publishing       
duopoly, the work practices of judicial clerks and staff attorneys, and the   
various disciplinary mechanisms courts use for controlling the development of 
precedent; and sustained historical and jurisprudential research and analysis 
into the histories of the practices of private judging and the U.S. version of
the doctrine of precedent.

  *1534 Krotoszynski's work on process suggests, too, that not only           
independent experts should supplement institutions if the scandal of private  
judging in the U.S. courts is to be squarely confronted and necessary change  
achieved. He argues: 
    [M]embership on the committees charged with revising . . . procedural     
rules . . . should reflect the cultural diversity of the contemporary United  
States. Women, persons of color, and gays and lesbians should enjoy seats at  
the table as a matter of course. Plainly, if the procedural rules lack the    
input of cultural minorities, they are less likely to engender faith in the   
public courts that apply them on a daily basis. [FN575]

  Next, such independent scrutiny should be directed to the perceived         
"problems" that actually gave rise to contemporary institutionalized          
unpublication. The current rules miss the forest for a tree that is likely not
the one that really prompted them: 
    [A]ppellate opinions serve a host of other purposes [than lawmaking]: to  
supervise the lower courts, for instance, or to provide a mechanism for       
interested or disinterested observers to keep track of how an agency is       
administering a statute . . . . [T]he policies that inform the publication    
plans do not consider the plans' impact on these purposes. [FN576]

  If most pro se criminal and prisoner civil rights appeals that result in    
unpublished opinions are "frivolous," we need to direct reform towards        
appeals, not opinions, and perhaps to more fundamental flaws with the         
administration of criminal law and corrections policy. If the others are cases
where the law is clear, as is its application to the facts, then perhaps U.S. 
courts need to consider making the award of costs follow the result, as       
happens in Britain and Australia, for example.

  We also need to be careful what we wish for, given the disingenuousness or  
cynicism that has itself become the scandal of the U.S. judiciary as a result 
of the institutionalization of the practices of private judging. [FN577] The  
strategy suggested by J. Clark Kelso [FN578] and apparently adopted by Texas  
of solving the unpublication problem by designating certain opinions          
memorandum opinions "that would, in all significant respects, look like an    
unpublished opinion," but at least on Kelso's proposal would be citeable, does
not address the problem of quality of analysis that is linked to the issue of 
accountability, as Kelso's *1535 discussion apparently concedes. [FN579] It   
also allows the status quo to persist under a new rubric.

  An alternative to stopping the practices of private judging would be to     
effectively publish all opinions, even if some have a designated inferior     
precedential status. If this approach is adopted, steps need to be taken to   
maintain online databases, ensuring continuing access to the archive of public
documents constituted by judicial opinions, and to deal with generic problems 
such as "linkrot." In addition, these archives need to be meaningfully        
searchable, something that the judiciary is apparently still not committed to,
despite legislative encouragement. In the case of depublication and stipulated
withdrawal, courts should provide for public notice to and a right of comment 
by nonparties in advance of any decision to depublish or grant stipulated     
withdrawal (or reversal).

  Finally, if the practices of private judging are to persist, rather than    
relying on occult mechanisms, committees, bureaucrats, clerks and staff       
attorneys, interested repeat-player litigants, or employees of LEXIS and West,
ethical courts should follow the British and Australian models and delegate   
the selection of unpublished, depublished, and withdrawn opinions to panels of
lawyers and judges, which should also include citizen, scholar, and           
interest-group representatives.
                                       
                                  Conclusion
  This Article ends with a reflection on Jones No. 2, which documents the     
beginnings of the institutionalization of the practices of private judging in 
the U.S. courts. Jones No. 2 likewise bears within its text traces of the     
scandalous other text upon which (and upon the silencing of which) its        
authority depends: the unpublished opinion in Knight v. Coiner. There is a    
certain bleak elegance, if little chance, in the fact that the latter,        
unpublished, accorded rights to a prisoner, and the former, published, made a 
point of making new law that made sure those rights did not exist.

  This stubbornly material remnant in the form of an opinion belies the U.S.  
judiciary's efficiency-based rationalizations of the most pervasive of the    
practices of private judging, and to the benign revisionist histories they and
many of the commentators who have written of these practices have fashioned   
about them. At the same time it is a symptom of the corruption these practices
invite: An unreflective urge to rationalize discriminatory practices,         
something that an ethical judiciary must be forever on guard against; a       
willingness to accord those on the margins of the law second-class access to  
legal services *1536 (one cannot in this context write without irony of       
justice); and the turning of procedure into an end in itself, a barrier to    
frustrate the importunings of the least powerful of the citizens of what one  
in this context might ironically call the land of the free.

  The alternative approach to procedure is what it can be in the hands of     
genuinely ethical lawyers who are unafraid to speak truth to power: A means to
make the law as responsive to the plight of the dispossessed as to the        
powerful, to the appeals of all citizens and others who seek access to law or 
to justice in the nation's courts.

  A distinguished Canadian law librarian whom I consulted in the early stages 
of this project wrote, in relation to my request for confirmation that        
Canadian courts, like those in Australia, New Zealand, and (until recently)   
Britain did not follow the practices of private judging nor seek to limit the 
precedential value of decisions: "[W]e expect more of our judges than that."  
Jones No. 2 demonstrates the folly of scholars who take the judges at face    
value. It is time that we ask more of them.
                                       
                                   Appendix
 
                          Publication/Citation Rules
 
                             State Courts Alabama
  The official position is that in Alabama, "all supreme court, court of civil
appeals, and court of criminal appeals opinions are published." [FN580]       
However, Alabama Rules of Appellate Procedure, Rules 53 and 54 provide for    
"No-Opinion" affirmances of trial court decisions in both civil and criminal  
cases and ban their citation in most circumstances: In criminal appeals, the  
same restriction applies to a class of opinions called memoranda, which may or
may not be confined to affirmances, which are not published unless they       
contain concurrences or dissents. If a dissent or concurrence is written, the 
opinion will be published with a "No Opinion" designation. Otherwise, cases   
with "No Opinion" distinctions are collected in a periodic "Table of Decisions
Without Published Opinions." In criminal appeals, affirmances do not need     
opinions if "the court determines that an opinion in the case would serve no  
significant precedential purpose." In civil appeals, affirmances do not       
require an opinion if the following criteria apply: 
    (1) That an opinion in the case would serve no significant precedential   
purpose; and (2) That one of the following circumstances exists: (A) the *1537
judgment or order appealed from is based on findings of fact that are not     
clearly, plainly, or palpably erroneous; (B) the evidence adequately supports 
the jury verdict on which the judgment or order is based; (C) in a nonjury    
case in which the judge has made no specific findings of fact, the evidence   
would support those findings that would have been necessary to support the    
judgment or order; (D) the order of an administrative agency is sufficiently  
supported by the evidence in the record; (E) the appeal is from a summary     
judgment, a judgment on the pleadings, or a judgment based on a directed      
verdict, and that judgment is supported by the record; or (F) the court, after
a review of the record and the contentions of the parties, concludes that the 
judgment or order was entered without an error of law. Ala. R. App. P. 53. 
    (d) "No-Opinion" Affirmance Not Precedent. An order of affirmance issued  
by the Supreme Court or the Court of Civil Appeals by which a judgment or     
order is affirmed without an opinion, pursuant to section (a), shall have no  
precedential value and shall not be cited in arguments or briefs and shall not
be used by any court within this state, except for the purpose of establishing
the application of the doctrine of law of the case, res judicata, collateral  
estoppel, double jeopardy, or procedural bar. Ala. R. App. P. 53. 
    (d) "No-Opinion" Affirmance Not Precedent. An order of affirmance or      
memorandum issued by the Court of Criminal Appeals by which a judgment or     
order is affirmed without an opinion, pursuant to section (a) in a case       
designated as a "No-Opinion" case, shall have no precedential value and shall 
not be cited in arguments or briefs and shall not be used by any court within 
this state, except for the purpose of establishing the application of the     
doctrine of law of the case, res judicata, collateral estoppel, double        
jeopardy, or procedural bar. Ala. R. App. P. 54.

  Alaska

  The courts have memorandum opinions on its website for a period of days and 
then interested parties have to contact the court office for a copy. These are
unpublished and do not have precedential value. Supreme court and court of    
appeals decisions can go unpublished via Alaska Court Rules of Appellate      
Procedure, Rule 214(a): 
    (a) The court may determine that an appeal shall be disposed of by summary
order and without formal written opinion. To assist the court in making this  
determination, the parties may request in writing that an appeal be so        
decided. The request shall be signed by all parties and may be filed any time 
after the filing of the notice of appeal. 
    (b) In a criminal case, a summary order under this rule shall contain, at 
a minimum, a statement of the issues considered by the appellate court. This  
statement of issues may be made by reference to a trial court opinion. For    
purposes of this rule, "criminal case" includes all collateral criminal *1538 
proceedings listed in AS 22.07.020(a). 
    (c) Nothing in this rule limits the right of the parties to oral argument 
pursuant to Rule 213. 
    (d) Summary decisions under this rule are without precedential effect and 
may not be cited in the courts of this state. Alaska R. App. P. 214.

  Arizona 
    (b) When Dispositions to Be by Opinion. Dispositions of matters before the
court requiring a written decision shall be by written opinion when a majority
of the judges acting determine that it: (1) establishes, alters, modifies or  
clarifies a rule of law, or (2) calls attention to a rule of law which appears
to have been generally overlooked, or (3) criticizes existing law, or (4)     
involves a legal or factual issue of unique interest or substantial public    
importance, or (5) if the disposition of a matter is accompanied by separate  
concurring or dissenting expression, and the author of such separate          
expression desires that it be published, then the decision shall be by        
opinion. 
    (c) Dispositions as Precedent. Memorandum decisions shall not be regarded 
as precedent nor cited in any court except for (1) the purpose of establishing
the defense of res judicata, collateral estoppel, or the law of the case or   
(2) informing the appellate court of other memorandum decisions so that the   
court can decide whether to publish an opinion, grant a motion for            
reconsideration, or grant a petition for review. Any party citing a memorandum
decision pursuant to this rule must attach a copy of it to the motion or      
petition in which such decision is cited. 
    (f) Depublication. Notwithstanding the provisions of Rule 28(b) above, an 
opinion which has been certified for publication by the Appeals Court shall   
not be published, on an order to that effect by the Supreme Court entered in a
case which is before the Supreme Court on a petition for review,              
cross-petition for review, or petition for special action and which is entered
before such opinion becomes final. 
    (g) Partial Publication of Decisions. When the court issuing a decision   
concludes that only a portion of that decision meets the criteria for         
publication as an opinion, the court shall issue that portion of the decision 
as a published opinion and shall issue the remainder of the decision as a     
separate memorandum decision not intended for publication. 17B A.R.S. Civ.    
App. P.28. See also Ariz. Sup. Ct. R. 111 (a)-(d) (providing, inter alia, for 
disposition of Arizona Supreme court cases by published written decisions,    
memorandum decisions, and decisions without reasons, and establishing         
publication criteria); 17B A.R.S. Civ. App. P. 28(c) (limiting precedential   
value and citation of memorandum decisions).

  Arkansas

  Arkansas Rules of the Arkansas Supreme Court and the Arkansas Court of      
Appeals, Rule 5-2 provides that signed Supreme court opinions will be         
published and sets standards for designating court of appeals opinions "Not   
*1539 Designated for Publication; it also provides for memorandum opinions.   
"See In re Memorandum Opinions, 700 S.W.2d 63 (Ark. 1985) (per curiam) for    
standards governing issuance of memorandum opinions." [FN581] 
    (c) Court of Appeals--Published Opinions. Opinions of the Court of Appeals
which resolve novel or unusual questions will be released for publication when
the opinions are announced and filed with the clerk. The Court of Appeals may 
consider the question of whether to publish an opinion at its decision-making 
conference and at that time, if appropriate, make a tentative decision not to 
publish. Concurring and dissenting opinions will be published only if the     
majority opinion is published. All opinions that are not to be published shall
be marked "Not Designated for Publication." 
    (d) Court of Appeals--Unpublished Opinions. Opinions of the Court of      
Appeals not designated for publication shall not be published in the Arkansas 
Reports and shall not be cited, quoted or referred to by any court or in any  
argument, brief, or other materials presented to any court (except in         
continuing or related litigation upon an issue such as res judicata,          
collateral estoppel, or law of the case). Opinions not designated for         
publication shall be listed in the Arkansas Reports by case number, style,    
date, and disposition. Ark. Sup. Ct. R. 5-2.

  California 
    (a) [Supreme Court.] All opinions of the Supreme Court shall be published 
in the Official Reports. 
    (b) [Standards for publication of opinions of other courts.] No opinion of
a Court of Appeal or an appellate department of the superior court may be     
published in the Official Reports unless the opinion: (1) establishes a new   
rule of law, applies an existing rule to a set of facts significantly         
different from those stated in published opinions, or modifies, or criticizes 
with reasons given, an existing rule; (2) resolves or creates an apparent     
conflict in the law; (3) involves a legal issue of continuing public interest;
or (4) makes a significant contribution to legal literature by reviewing      
either the development of a common law rule or the legislative or judicial    
history of a provision of a constitution, statute, or other written law. 
    (c) [Publication procedure.] (1) [Courts of Appeal and appellate          
departments] An opinion of a Court of Appeal or an appellate department of the
superior court shall be published if a majority of the court rendering the    
opinion certifies, prior to the decision's finality in that court, that it    
meets one or more of the standards of subdivision (b). (2) [Supreme Court] An 
opinion certified for publication shall not be published, and an opinion not  
so certified shall be published, on an order of the Supreme Court to that     
effect. Cal. R. of Ct. 976.

  Depublication: 
    (d) [Superseded opinions.] Unless otherwise ordered by the Supreme Court, 
no opinion superseded by a grant of review, rehearing, or other action shall  
be *1540 published. After granting review, after decision, or after dismissal 
of review and remand as improvidently granted, the Supreme Court may order the
opinion of the Court of Appeal published in whole or in part. Cal. R. of Ct.  
976.

  Partial Publication: 
    (a) [Partial publication authorized.] A majority of the court rendering an
opinion may certify for publication any part of the opinion that meets the    
standard for publication specified under subdivision (b) of rule 976. The     
published part shall indicate that part of the opinion is unpublished. All    
material, factual and legal, that aids in the application or interpretation of
the published part shall be in the published part. 
    (b) [Other rules applicable.] For purposes of rules 976, 977, and  978,   
the published part of the opinion shall be treated as a published opinion, and
the unpublished part as an unpublished opinion. 
    (c) [Copy to Reporter of Decisions.] One extra copy of both the published 
and unpublished parts of the opinion shall be furnished by the clerk to the   
Reporter of Decisions. Cal. R. of Ct. 976.1.

  Citation: 
    (a) [Unpublished opinions.] An opinion of a Court of Appeal or an         
appellate department of the superior court that is not certified for          
publication or ordered published shall not be cited or relied on by a court or
a party in any other action or proceeding except as provided in subdivision   
(b). 
    (b) [Exceptions.] Such an opinion may be cited or relied on: (1) when the 
opinion is relevant under the doctrines of law of the case, res judicata, or  
collateral estoppel; or (2) when the opinion is relevant to a criminal or     
disciplinary action or proceeding because it states reasons for a decision    
affecting the same defendant or respondent in another such action or          
proceeding. 
    (c) [Citation procedure.] A copy of any opinion citable under subdivision 
(b) or of a cited opinion of any court that is available only in a            
computer-based source of decisional law shall be furnished to the court and   
all parties by attaching it to the document in which it is cited, or, if the  
citation is to be made orally, within a reasonable time in advance of         
citation. 
    (d) [Opinions ordered published by Supreme Court.] An opinion of the Court
of Appeal ordered published by the Supreme Court pursuant to rule 976 is      
citable. Cal. R. of Ct. 977.

  Colorado

  In Colorado, "although all supreme court opinions are published, 'the       
[supreme] court does dispose of some issues by unpublished orders. . . . A    
court of appeals opinion is not published unless it establishes a new rule of 
law, affects an existing rule, applies an established rule to a novel fact    
situation, *1541 involves a legal issue of continuing public interest,        
'directs attention to the shortcomings of existing common law or inadequacies 
in statutes,' or resolves an apparent conflict of authority. Unpublished      
opinions bear the legend, 'Not Selected for Publication."' [FN582] Serfass and
Cranford also note that unpublished orders of the supreme court may not be    
cited. [FN583] 
    (f) Published Opinions of Court of Appeals. A majority of all of the      
judges of the Court of Appeals shall determine which opinions of that court   
shall be designated for official publication. They shall be published in      
whatever official publication is designated by the Supreme Court. Those       
opinions designated for official publication shall be followed as precedent by
the trial judges of the state of Colorado. 
    No opinion of the Court of Appeals shall be designated for official       
publication unless it satisfies one or more of the following standards: (1)   
the opinion lays down a new rule of law, or alters or modifies an existing    
rule, or applies an established rule to a novel fact situation; (2) the       
opinion involves a legal issue of continuing public interest; (3) the opinion 
directs attention to the shortcomings of existing common law or inadequacies  
in statutes; (4) the opinion resolves an apparent conflict of authority. 
    An opinion of the Court of Appeals not designated for official publication
shall bear, on the title page, the legend, "NOT PUBLISHED PURSUANT TO [Colo.  
App. R.] 35(f)." 
    If the Supreme Court grants certiorari to a Court of Appeals opinion not  
designated for official publication, and if the Supreme Court announces an    
opinion in the case, the Court of Appeals' opinion shall not be published     
unless otherwise ordered by the Supreme Court. Colo. App. R. 35.

  Connecticut

  It appears that the Supreme Court of Connecticut has unpublished decisions, 
but the Court of Appeals does not appear to practice any form of              
nonpublication. Additionally, Serfass and Cranford report that unreported     
decisions from other jurisdictions may be cited in Connecticut if the         
reference is provided to the court and opposing counsel, via the Connecticut  
Rules of Appellate Procedure, Rule 67-9. [FN584] That provision does not on   
its face confine itself to decisions from other jurisdictions, however. 
    The reporter or the person appointed to perform his duties shall make     
reports of the cases argued and determined in the Supreme Court, prepare the  
reports for publication, and insert after the syllabus of each case the date  
of the arguments and the date of the decision. Conn. Gen. Stat. <section> 51- 
212(b) (2003).

  *1542 Delaware 
    (a) Final decisions. All decisions finally determining or terminating a   
case shall be made by written opinion, or by written order, as determined by  
the Court.

  COMMENT

  The purpose of this [1984] rule change is to make clear that orders of this 
Court may be cited as precedent in unrelated cases in this Court and in any   
other Delaware Court, which was the intent of the amendment of Rule 17(a),    
effective April 15, 1983. Del. Sup. Ct. R. 17. 
    (7) Publication of opinions and orders.--The Chief Staff Attorney promptly
forwards to any publisher designated by the Court all opinions designated for 
publication. Case dispositive orders are also distributed by the Chief Staff  
Attorney for inclusion in the Westlaw, Lexis, and Digilaw systems.

  (8) Citation to orders.--Supreme Court Rule 17 has been amended to permit   
orders of the Delaware Supreme Court to be cited as precedent. See New Castle 
County v. Goodman, 461 A.2d 1012, 1013 (Del. 1983) (citing rule change). Even 
though both published opinions and case dispositive judgment orders have      
precedential value, the Court avoids citing to its orders as authority.       
Whenever an order is cited in an opinion or order, however, a copy is attached
to that disposition. Orders should not be attached to an opinion unless       
unavoidable. Del. Sup. Ct. Internal Operating Proc. X; see also Del. Sup. Ct. 
R. 93(b).

  District of Columbia

  District of Columbia Appellate Rules 36(c) and 28(h) provide for unpublished
opinions and limit their citation. 
    (c) Publication of Opinions. An opinion may be be either published or     
unpublished. Any party or other interested person may request that an         
unpublished opinion be published by filing a motion within thirty days after  
issuance of the opinion, stating why publication is merited. Publication shall
be granted by a vote of two or more members of the division which issued the  
opinion, but a motion filed by a non-party shall not be granted except on a   
showing of good cause. The court sua sponte may also publish at any time a    
previously issued but unpublished opinion. D.C. Ct. App. R. 36(c). 
    (h) Citations in Briefs. Any published opinion or order of this court may 
be cited in any brief. Unpublished opinions or orders of this court shall not 
be cited in any brief, except when they are relevant under the doctrines of   
the law of the case, res judicata, or collateral estoppel, or in a criminal   
action or proceeding involving the same defendant, or a disciplinary action or
proceeding that (1) was decided prior to January 1, 1991, or (2) involves the 
same respondent. *1543 D.C. Ct. App. R. 28(h).

  Florida

  While the official position is that the Supreme Court does not practice     
unpublication, the court has a class of "disposition orders." Many District   
Court of Appeal cases go practically unpublished "as per curiam affirmances   
without written opinion." Dep't of Legal Affairs v. Dist. Court of Appeals,   
434 So.2d 310 (Fla. 1983) establishes this rule: "[P]er curiam affirmances    
without written opinion have no precedential value and should not be cited."  
[FN585]

  Georgia

  Georgia Rules of the Supreme Court of Georgia, Rule 59, provides for        
affirmances without reasons in the Georgia Supreme Court. Although there is no
rule establishing this, there is a citation ban on unpublished Supreme Court  
opinions in the Supreme Court, and Georgia Rules of the Court of Appeals of   
the State of Georgia, Rule 36, forbids their citation in the Court of Appeals.
Georgia Rules of the Court of Appeals of the State of Georgia, Rules 34 and 36
provide for unreported opinions of the Court of Appeals. 
    Each judgment shall show on its face the votes, nonparticipation, or      
disqualification of each judge. 
    (a) Judgment as Precedent. A judgment which is fully concurred in by all  
judges of the Division is a binding precedent; if there is a special          
concurrence without a statement of agreement with all that is said in the     
opinion or a concurrence in the judgment only, the opinion is a physical      
precedent only. If the appeal is decided by a seven or twelve judge Court, a  
full concurrence by a majority of judges is a binding precedent, but if the   
judgment is made only by special concurrences without a statement of agreement
with all that is said in the opinion or by concurrence in the judgment only,  
there being general concurrence by less than a majority of the Judges, it is a
physical precedent only. (b) Unreported Opinion. An unreported opinion is     
neither a physical nor binding precedent but establishes the law of the case  
as provided by OCGA <section> 9-11-60 (h). Ga. Ct. App. R. 33.

  Hawai'i 
    (a) Classes of dispositions. Dispositions may be rendered by a designated 
judge or justice and may take the form of published, per curiam, or memorandum
opinions or dispositional orders.

  *1544 (b) Publication. Memorandum opinions shall not be published.          
Dispositional orders shall not be published except upon the order of the      
appellate court.

  (c) Citation. A memorandum opinion or unpublished dispositional order shall 
not be cited in any other action or proceeding except when the opinion or     
unpublished dispositional order establishes the law of the pending case, res  
judicata or collateral estoppel, or in a criminal action or proceeding        
involving the same respondent. Haw. R. App. P. 35; see also Haw. Intermediate 
Ct. App. R. 2(b).

  Hawai'i also practices depublication. It rarely practices it and does not   
have a statute or rule authorizing it by name. However, Hawai'i Intermediate  
Court of Appeals Rule 2(a) reads: "A full opinion of the intermediate court of
appeals shall be published in a manner authorized by the supreme court. The   
supreme court, however, may order that a full opinion be changed to a         
memorandum opinion." Haw. Intermediate Ct. App. R. 2(a).

  Idaho

  There are no rules governing the standards for publication of unpublished   
opinions. 
    Unpublished Opinions of the Court. At or after the oral conference        
following the presentation of oral argument or the submission of the case to  
the Court on the briefs, the Court, by the unanimous consent of all justices, 
may determine not to publish the final opinion of the Court. If an opinion is 
not published, it may not be cited as authority or precedent in any court.    
Idaho Sup. Ct. R. 14(f).

  Illinois 
    (a) Opinions. A case may be disposed of by an opinion only when a majority
of the panel deciding the case determines that at least one of the following  
criteria is satisfied, subject to the limitations contained in the            
accompanying administrative order: (1) the decision establishes a new rule of 
law or modifies, explains or criticizes an existing rule of law; or (2) the   
decision resolves, creates, or avoids an apparent conflict of authority within
the Appellate Court.

  . . . . 
    (e) Effect of Orders. An unpublished order of the court is not            
precedential and may not be cited by any party except to support contentions  
of double jeopardy, res judicata, collateral estoppel or law of the case. When
cited for these purposes, a copy of the order shall be furnished to all other 
counsel and the court. 
    (f) Motions to Publish. If an appeal is disposed of by order, any party   
may move to have the order published as an opinion. The motion shall set forth
the reasons why the order satisfies the criteria for disposition as an opinion
and shall be filed within 21 days of the entry of the order. Ill. Sup. Ct. R. 
23.

  *1545 Indiana 
    (A) Criteria for Publication. All Supreme Court opinions shall be         
published. A Court of Appeals opinion shall be published if the case: (1)     
establishes, modifies, or clarifies a rule of law; (2) criticizes existing    
law; or (3) involves a legal or factual issue of unique interest or           
substantial public importance. Other Court of Appeals cases shall be decided  
by not-for-publication memorandum decision. A judge who dissents from a       
not-for-publication memorandum decision may designate the dissent for         
publication if one (1) of the criteria above is met. 
    (D) Precedential Value of Not-For-Publication Memorandum Decision. Unless 
later designated for publication, a not-for-publication memorandum decision   
shall not be regarded as precedent and shall not be cited to any court except 
by the parties to the case to establish res judicata, collateral estoppel, or 
law of the case. Ind. R. App. P. 65.

  Iowa

  Both the Supreme Court and the Court of Appeals practice unpublication.     
Iowa Code Ann. <section> 602.4106(4) reads: "If the decision, in the judgment 
of the court, is not of sufficient general importance to be published, it     
shall be so designated, in which case it shall not be included in the reports,
and no case shall be reported except by order of the full bench." See Iowa    
Sup. Ct. R. 9. Unpublished opinions may not be cited as authority except in   
limited circumstances. [FN586] 
    21.30(1) Policy. The principal role of the court of appeals is to dispose 
justly of a high volume of cases. In order to achieve maximum productivity    
without sacrificing quality, the court of appeals must devote time, which     
otherwise might be used in writing and revising full opinions, to deciding    
cases. 21.30(2) Criteria for publication. An opinion of the court of appeals  
may be published only when at least one of the following criteria is          
satisfied: 
    a. The case resolves an important legal issue. 
    b. The case concerns a factual situation of broad public interest. 
    c. The case involves legal issues which have not been previously decided  
by the Iowa Supreme Court. 
    21.30(3) Authority for publication. Subject to this rule, the court of    
appeals, by majority vote of its members en banc, shall decide which of its   
opinions shall be published. Its decision to publish an opinion shall be      
reflected in an order filed with the clerk within 30 days after the opinion   
becomes final. A copy of the order shall be provided to the state court       
administrator. An opinion may be published only after it is final. Denial of  
further review shall not constitute approval by the supreme court of the      
opinion sought to be reviewed. When further review is granted, the supreme    
court shall decide whether the court of appeals opinion will be published.    
*1546 Iowa Code Ann. <section> 21.30 (2002).

  Iowa also addresses citation of unpublished opinions in its rules of        
citation for briefs and oral arguments.

  Briefs: 
    (5) b. "Iowa Ct. R." when citing all other rules. 
    An unpublished opinion of the Iowa appellate courts or of any other       
appellate court may be cited in a brief; however, unpublished opinions shall  
not constitute controlling legal authority. A copy of the unpublished opinion 
shall be attached to the brief and shall be accompanied by a certification    
that counsel has conducted a diligent search for, and fully disclosed, any    
subsequent disposition of the unpublished opinion. For purposes of these      
rules, an "unpublished" opinion means an opinion the text of which is not     
included or designated for inclusion in the National Reporter System. When    
citing an unpublished appellate opinion, a party shall include, when          
available, an electronic citation indicating where the opinion may be readily 
accessed on line. Iowa R. App. P. 6.14.

  Oral Arguments: 
    6.21(5) If a party intends to cite during oral argument an authority not  
previously included in its brief, it shall file a notice of additional        
authority giving a citation for each additional authority upon which the party
relies. The party shall serve one copy of the notice on counsel for each party
and file twelve copies with the clerk of the supreme court prior to oral      
argument. If the notice includes a citation to an unpublished opinion, a copy 
of that opinion shall be attached to the notice. Iowa R. App. P. 6.21.

  Kansas 
    (a) Opinions of the appellate courts, whether signed or per curiam, shall 
be memorandum opinions or formal opinions according to the requirements of    
K.S.A. 60-2106.

  (b) Opinions shall be published in the official reports only when they      
satisfy the standards set out in this rule. Disposition by memorandum, without
a formal published opinion, does not mean that the case is considered         
unimportant. It does mean that no new points of law making the decision of    
value as precedent are believed to be involved.

  An opinion shall be prepared in memorandum form unless it:

  (a) Establishes a new rule of law or alters or modifies an existing rule;

  (b) Involves a legal issue of continuing public interest;

  (c) Criticizes or explains existing law;

  (d) Applies an established rule of law to a factual situation significantly 
different from that in published opinions of the courts of this state;

  (e) Resolves an apparent conflict of authority; or

  (f) Constitutes a significant and non-duplicative contribution to legal     
literature:

  *1547 (1) by an historical review of law; or

  (2) by describing legislative history.

  A memorandum opinion shall not be published unless there is a separate      
concurring or dissenting opinion in the case, and the author of such separate 
opinion requests that it be reported; or unless it is ordered to be published 
by the Supreme Court.

  (c) A party or other interested person who believes that an opinion of      
either the Supreme Court or Court of Appeals that is not designated by the    
court for publication meets the standards for publication established by this 
rule or otherwise has substantial precedential value may file a motion in the 
Supreme Court asking that it be published. The motion shall state the grounds 
for such belief, shall be accompanied by a copy of the opinion, and shall     
comply with Supreme Court Rule 5.01 except that service shall not be required.
(d) Regardless of the foregoing, no opinion superseded by an opinion on       
rehearing shall be published. An opinion that is modified on rehearing shall  
be published as modified if it otherwise meets the standards of this rule. (e)
A formal opinion shall be written and published only if the majority of the   
justices or judges participating in the decision find that one of the         
standards set out in this rule is satisfied. The court or panel which decides 
the case shall make a tentative decision whether or not a formal opinion is   
required before or at the time the writing assignment is made. Concurring and 
dissenting opinions shall be published only if the majority opinion is        
published.

  (f)(1) All memorandum opinions, unless otherwise required to be published,  
shall be marked: "Not Designated for Publication." (2) Unpublished memorandum 
opinions of any court or agency (i) are not binding precedents, except under  
the doctrines of law of the case, res judicata, and collateral estoppel. (ii) 
are not favored for citation. But unpublished memorandum opinions may be cited
if they have persuasive value with respect to a material issue not addressed  
in a published opinion of a Kansas appellate court and they would assist the  
court in its disposition. (iii) must be attached to any document, pleading, or
brief that cites them. Kan. Sup. Ct. R. 7.04.

  Kentucky

  Kentucky Revised Statutes Section 21A.070 gives the Kentucky Supreme Court  
discretion to decide which opinions of  the court of appeals and lower courts 
will be published. 
    (4) Publication. (a) When a motion for discretionary review under Rule    
76.20 is filed with the Supreme Court, the opinion of the Court of Appeals in 
the case under review shall not be published until the Supreme Court rules on 
the motion for discretionary review or until the Court permits the motion to  
be withdrawn. Unless otherwise ordered by the Supreme Court, upon entry of an 
order denying the motion for discretionary review or granting withdrawal of   
the motion, the opinion of the Court of Appeals shall be published if the     
opinion was designated "To Be Published" by the Court of Appeals. Upon entry  
of an order of the Supreme Court granting a motion for discretionary review   
the opinion of the Court of Appeals shall not be published, unless otherwise  
ordered by the Supreme Court. All other opinions of the appellate *1548 courts
will be published as directed by the court issuing the opinion. Every opinion 
shall show on its face whether it is "To Be Published" or "Not To Be          
Published." 
    (c) Opinions that are not to be published shall not be cited or used as   
authority in any other case in any court of this state. Ky. Civ. R. 76.28.

  Louisiana

  The Lousiana Supreme Court has "signed opinions," "per curiam opinions," and
 "summary orders." There are no citation bans on Supreme Court opinions. 
    2.16.1 Forms of Opinions; Standards for Use. 
    (a) The decision of a Court of Appeal may be expressed in one of the      
following forms:

  (1) a full opinion which gives the judgment of the court and a full         
statement of the reasons supporting the judgment;

  (2) a memorandum opinion which gives the judgment of the court and a brief  
statement of the reasons supporting the judgment; or

  (3) a per curiam opinion which gives only the judgment of the court.

  (b) The type of opinion to be used in each case will be decided by a        
majority of the panel which decides the case, according to the following      
standards:

  (1) a full opinion is appropriate when:

  (a) in deciding the case, the court enunciates a new rule of law or modifies
an existing rule;

  (b) an apparent conflict of authority exists;

  (c) the court is not unanimous in its disposition of the case; or

  (d) the decision is of substantial public interest;

  (1) a memorandum or per curiam opinion is appropriate when:

  (a) the issues involve no more than the application of well-settled rules of
law to a recurring fact situation;

  (b) the issue is whether the evidence is sufficient and it clearly is; or

  (c) the case is clearly controlled by existing case law and there is no     
reason to modify or deviate from that law. 
    2-16.2 Standards for Publication. An opinion of a Court of Appeal shall   
not be designated for publication unless a majority of the panel decides it   
should be published under the following standards:

  (a) the opinion establishes a new rule of law or alters or modifies an      
existing rule;

  (b) the opinion involves a legal issue of continuing public interest;

  (c) the opinion criticizes existing law;

  (d) the opinion resolves an apparent conflict of authority; or

  (e) the opinion will serve as a useful reference, such as one reviewing case
law or legislative history. 
    An opinion may also be published if it is accompanied by a concurring or  
dissenting opinion; or reverses the decision below or affirms it upon         
different grounds.

  2-16.3 Unpublished Opinions; Designation; Citation. Opinions marked "Not    
Designated for Publication" shall not be cited, quoted, or referred to by any 
*1549 counsel, or in any argument, brief, or other materials presented to any 
court, except in continuing or related litigation. Opinions marked "Not       
Designated for Publication" shall be filed in the clerk's office as public    
records. La. App. Ct. R. 2-16.

  Maine

  Maine does not have a rule of court that addresses standards for opinions or
publication. Under 4 Maine Revised Statutes Annotated Section 702 (2004), the 
reporter of decisions reports cases at his discretion, supervised by the chief
justice of the supreme judicial court. Signed opinions and per curiams appear 
to be published while memorandum decisions and summary orders are not. 
    6. Memorandum Decisions and Summary Orders shall not be published in the  
Atlantic Reporter and shall not be cited as precedent for a matter addressed  
therein. Me. R. 6.

  Maryland

  In Maryland, the court of special appeals designates for publication only   
those opinions that have substantial general interest as precedent. [FN587]

  However, there appear to be no guidelines for unreported decisions of the   
Court of Appeals. It is left to the court's discretion. 
    (a) Reporting of opinions. The Court of Special Appeals shall designate   
for reporting only those opinions that are of substantial interest as         
precedents. (b) Request for reporting of unreported opinion. At any time      
before the mandate issues, the Court of Special Appeals, on its own initiative
or at the request of a party or nonparty filed before the date on which the   
mandate is due to be issued, may designate for reporting an opinion previously
designated as unreported. An unreported opinion may not be designated for     
reporting after the mandate has issued. Md. R. 8-605.1. 
    (a) Not Authority. An unreported opinion of the Court of Appeals or Court 
of Special Appeals is neither precedent within the rule of stare decisis nor  
persuasive authority. 
    (b) Citation. An unreported opinion of either Court may be cited in either
Court for any purpose other than as precedent within the rule of stare decisis
or as persuasive authority. In any other court, an unreported opinion of      
either Court may be cited only (1) when relevant under the doctrine of the law
of the case, res judicata, or collateral estoppel, (2) in a criminal action or
related proceeding involving the same defendant, or (3) in a disciplinary     
action involving the same respondent. A party who cites an unreported opinion 
shall attach a copy of it to the pleading, brief, or paper in which it is     
cited. *1550 Md. R. 8-114.

  Massachusetts

  Massachusetts courts publish only a portion of their opinions and summary   
dispositions. Massachusetts Annotated Laws chapter 211 section 64, chapter    
211A sections 9, 64, and Massachusetts Appellate Court Rule 1:28 give wide    
discretion to the Supreme Judicial Court and Appeals Court over reporting     
decisions. The Appeals Court uses the terminology of "rescripts," and orders, 
directions, judgments, and decrees without reasons to designate cases without 
opinions.

  The case law in Massachusetts suggests that summary decisions issued        
pursuant to Rule 1:28 may not be relied upon or cited as authority (Horner v. 
Boston Edison Co., 695 N.E.2d 1093 (Mass. App. Ct. 1998); Lyons v. Labor      
Relations Comm'n, 476 N.E.2d 243 (Mass. App. Ct. 1985)). [FN588] 
    At any time following the filing of the appendix (or the filing of the    
original record) and the briefs of the parties on any appeal in accordance    
with the applicable provision of Rule 14(b), 18, and 19 of the Massachusetts  
Rules of Appellate Procedure, a panel of the justices of this court may       
determine that no substantial question of law is presented by the appeal or   
that some clear error of law has been committed which has injuriously affected
the substantial rights of an appellant and may, by its written order, affirm, 
modify or reverse the action of the court below. Mass. App. Ct. R. 1:28.

  Michigan

  Serfass and Cranford cite a court official to the effect that all Supreme   
Court opinions are published. [FN589] 
    (B) Standards for Publication. A court opinion must be published if it:   
(1) establishes a new rule of law; (2) construes a provision of a             
constitution, statute, ordinance, or court rule; (3) alters or modifies an    
existing rule of law or extends it to a new factual context; (4) reaffirms a  
principle of law not applied in a recently reported decision; (5) involves a  
legal issue of continuing public interest; (6) criticizes existing law; (7)   
creates or resolves an apparent conflict of authority, whether or not the     
earlier opinion was reported; or (8) decides an appeal from a lower court     
order ruling that a provision of a Michigan Constitution, a Michigan statute, 
a rule or regulation included in the Michigan Administrative Code, or any     
other action of the legislative or executive branch of state government is    
invalid. Mich. App. R. 7.215. 
    (C) Precedent of Opinions. (1) An unpublished opinion is not              
precedentially *1551 binding under the rule of stare decisis. A party who     
cites an unpublished opinion must provide a copy of the opinion to the court  
and to opposing parties with the brief or other paper in which the citation   
appears. (2) A published opinion of the Court of Appeals has precedential     
effect under the rule of stare decisis. The filing of an application for leave
to appeal to the Supreme Court or a Supreme Court order granting leave to     
appeal does not diminish the precedential effect of a published opinion of the
Court of Appeals. Mich. App. R. 7.215.

  Minnesota

  Serfass and Cranford cite a court official to the effect that all Supreme   
Court opinions are published. [FN590] 
    Opinions state the nature of the case and the reasons for the decision.   
The panel will decide at its conference whether to publish an opinion. The    
publication decision is guided by Minnesota Statutes, section 480A.08,        
subdivision 3, which provides for publication of opinions which establish a   
new rule of law, overrule a previous Court of Appeals decision not reviewed by
the Minnesota Supreme Court, provide important procedural guidelines in       
interpreting statutes or administrative rules, involve a significant legal    
issue, or significantly aid in the administration of justice. All other       
opinions are unpublished. 51 Minn. Stat. Ann. Ct. of App. R. 4. 
    The decision of the court need not include a written opinion. A statement 
of the decision without a written opinion must not be officially published and
must not be cited as precedent, except as law of the case, res judicata, or   
collateral estoppel. The Court of Appeals may publish only those decisions    
that: (1) establish a new rule of law; (2) overrule a previous Court of       
Appeals' decision not reviewed by the Supreme Court; (3) provide important    
procedural guidelines in interpreting statutes or administrative rules; (4)   
involve a significant legal issue; or (5) would significantly aid in the      
administration of justice. Minn. Stat. <section> 480A.08 (2004); see also     
Minn. R. Civ. App. P. 136.01 
    Unpublished opinions are not precedential and may not be cited unless     
copies are provided to other counsel at least 48 hours before their use at any
pretrial conference, hearing, or trial. If an unpublished opinion is cited in 
a brief or memorandum, copies must be provided to all other counsel at the    
time the brief or memorandum is served. 51 Minn. Stat. Ann. Ct. of App. R. 4.

  *1552 Mississippi 
    (a) Written Opinions. The Supreme Court may write opinions on all cases   
heard by that Court and shall publish all such written opinions. In cases     
where the judgment of the trial court is affirmed, an opinion will be written 
in all cases where the Supreme Court assesses damages for a frivolous appeal  
and in other cases if a majority of the justices deciding the case determine  
that a written opinion will add to the value of the jurisprudence of this     
State or be useful to the parties or to the trial court. 
    (b) Citation of Unpublished Opinions. Opinions in cases decided prior to  
the effective date of this rule which have not been designated for publication
shall not be cited, quoted or referred to by any court or in any argument,    
brief or other materials presented to any court except in continuing or       
related litigation upon an issue such as res judicata, collateral estoppel or 
law of the case.

  . . . . 
  (d) Per Curiam Affirmance. The Court, with the concurrence of all justices  
participating in the case, may affirm the action of the trial court without   
rendering a formal opinion when an opinion would have no precedential value   
and one or more of the following circumstances exist and are dispositive of   
the appeal:

  (1) the Court concurs in the facts as found or as found by necessary        
implication by the trial court;

  (2) there is material evidence to support the verdict of the jury;

  (3) no reversible error of law appears. *1553 Miss. R. App. P. 35-A. 
    (a) Written opinions in the Court of Appeals.

  The Court of Appeals may write opinions on all cases heard by that court and
shall publish all such written opinions. In cases where the judgment of the   
trial court is affirmed, an opinion will be written in all cases where the    
Court of Appeals assesses damages for a frivolous appeal and in other cases if
a majority of the judges deciding the case determine that a written opinion   
will add to the value of the jurisprudence of this state or be useful to the  
parties or to the trial court.

  (b) Citation of unpublished opinions.

  Opinions in cases which have not been designated for publication shall not  
be cited, quoted or referred to by any court or in any argument, brief or     
other materials presented to any court except in continuing or related        
litigation upon an issue such as res judicata, collateral estoppel or law of  
the case.

  . . . . 
  (d) Per Curiam Affirmance.

  The Court of Appeals, with the concurrence of all judges participating in   
the case, may affirm the action of the trial court without rendering a formal 
opinion when an opinion would have no precedential value and one or more of   
the following circumstances exist and are dispositive of the appeal:

  (1) the Court concurs in the facts as found or as found by necessary        
implication by the trial court;

  (2) there is material evidence to support the verdict of the jury;

  (3) no reversible error of law appears. Miss. R. App. P. 35-B.

  Missouri 
    (a) Written Opinions Required. Except as in subsection (b) of this Rule,  
in each case determined by this Court or by any district of the Court of      
Appeals, the appellate judicial opinion shall be in writing and filed. If the 
decision is not unanimous, the opinion shall show which judges concurred      
therein or dissented therefrom.

  (b) Summary Orders. In a case in which decision is unanimous and all judges 
believe that no jurisprudential purpose would be served by a written opinion, 
disposition may be made by a written summary order. By local court rule this  
Court or any district of the Court of Appeals may require a brief written     
statement be attached to any such order. The statement shall not constitute a 
formal opinion of the court and shall not be reported. Neither shall it be    
cited nor otherwise used in any case before any court. Mo. Sup. Ct. R. 30.25. 
    (a) Written Decision Required. In each case determined by this Court or by
any district of the Court of Appeals, the judicial decision shall be reduced  
to writing and filed in the cause. If the decision is not unanimous, the      
writing shall show which judges concurred therein or dissented therefrom. 
    (b) Memorandum Decisions and Written Orders. In a case where all judges   
agree to affirm and further believe that an opinion would have no precedential
value, disposition may be by a memorandum decision or written order. A        
memorandum decision or written order may be entered only when the appellate   
court unanimously determines that any one or more of the following            
circumstances exists and is dispositive of a matter submitted for decision:

  (1) That a judgment of the trial court reviewable under Rule 84.13(d) is    
supported by substantial evidence and is not against the weight of the        
evidence;

  (2) That a judgment of the trial court in a proceeding under Rule 24.035 or 
Rule 29.15 is based on findings of fact that are not clearly erroneous;

  (3) That the evidence in support of a jury verdict is not insufficient;

  (4) That the order of an administrative agency is supported by competent and
substantial evidence on the whole record;

  (5) That no error of law appears. Mo. Sup. Ct. R. 84.16. 
    (a)(3) A motion to publish an opinion. The motion shall briefly and       
distinctly explain why the court's disposition of the appeal has precedential 
value, in whole or in part. Mo. Sup. Ct. R. 84.17.

  Montana 
    3. (c) If an appeal presents no constitutional issues, no issues of first 
impression, does not establish new precedent or modify existing precedent, or,
*1554 in the opinion of the Court, would otherwise not be of future guidance  
for citation purposes to the citizens of Montana, the bench, or the bar, the  
Court may classify that appeal as one for a noncitable opinion. The decision  
for the case will provide the ultimate disposition without a detailed         
statement of facts or law. The decision shall not be citable as precedent but 
shall be filed as a public document with the clerk; shall be reported by      
result only to the State Reporter Publishing Company and to West Group along  
with the case title and Supreme Court cause number in the quarterly table of  
noncitable cases issued by this Court; and shall be assigned a public domain, 
neutral-format citation in accordance with the Court's order dated December   
16th, 1997, and posted to the State Bulletin Board. Mont. Int. Op. R.         
<section> I. 
    In the case of opinions which are not to be cited as precedent (variously 
referred to as unpublished, "noncite," or memorandum opinions) and in the case
of all substantive orders (unless otherwise specifically designated by this   
Court), the consecutive number in the public domain or neutral-format citation
shall be followed by the letter "N" to indicate that the opinion or           
substantive order is not to be cited as precedent in any brief, motion or     
document filed with this Court or elsewhere (for example, 1998 MT 1N). Any "N"
citation, nevertheless, shall be listed along with the result, case title and 
Supreme Court cause number in the quarterly table of noncitable cases issued  
by this Court and published by the State Reporter Publishing Company and West 
Group. Mont Int. Op. R. <section> VII.

  Nebraska

  Serfass and Cranford suggest that "by implication," and pursuant to Nebraska
Supreme Court Rule 9(C)(4), only "reported cases shall be cited by the state  
reports," and not those summarily disposed of. [FN591] 
    Opinions; when filed. 
    The court shall cause to be reported with as much brevity as practicable  
each of its decisions which reverses or modifies the judgment of the district 
court, and also each other decision, whether made in disposing of a motion or 
otherwise, which determines or modifies any theretofore unsettled or new and  
important question of law, or that gives construction to any provision of the 
Constitution or of a statute not before construed, together with such other of
its decisions as are deemed to be of interest or importance. Neb. Rev. Stat.  
<section> 24-208 (2003). 
    The Court of Appeals will prepare a written opinion in cases where the    
court believes explanation of its decision is required or that the case is of 
value as a precedent. Neb. Sup. Ct. R. 2E.(1). 
    *1555 The panel of the Court of Appeals deciding a case may designate its 
opinion as "For Permanent Publication" only when one or more of the criteria  
set out in Neb. Rev. Stat. 24-1104(2) is satisfied. Neb. Sup. Ct. R. 2E.(6). 
    In determining whether to publish a memorandum opinion, the Court of      
Appeals may take into consideration one or more of the following factors: (a) 
Whether the decision enunciates a new rule of law; (b) Whether the decision   
applies an established rule of law to a factual situation significantly       
different from that in published opinions; (c) Whether the decision resolves  
or identifies a conflict between prior Court of Appeals decisions; (d) Whether
the decision will contribute to legal literature by collecting case law or    
reciting legislative history; and (e) Whether the decision involves a case of 
substantial and continuing public interest. Neb. Rev. Stat. <section> 24- 1104
(2003). 
    Opinions of the Court of Appeals which the deciding panel has designated  
as "For Permanent Publication" may be cited in all courts and tribunals in the
State of Nebraska. Other opinions and memorandum opinions of the Court of     
Appeals may be cited only when such case is related, by identity between the  
parties or the causes of action, to the case then before the court. Neb. Sup. 
Ct. R. 2E (4).

  Nevada 
    An unpublished opinion or order of the Nevada Supreme Court shall not be  
regarded as precedent and shall not be cited as legal authority except when   
the opinion or order is (1) relevant under the doctrines of law of the case,  
res judicata or collateral estoppel; or (2) relevant to a criminal or         
disciplinary proceeding because it affects the same defendant or respondent in
another such proceeding. Nev. Sup. Ct. R. 123.

  New Hampshire

  There are unpublished "orders" pursuant to New Hampshire Supreme Court Rule 
25(1), which states that the supreme court may dispose of cases summarily when
(a) no substantial question of law exists and the supreme court does not      
disagree with the result below, (b) the opinion of the lower court identifies 
and discusses the issues presented and the supreme court does not disagree,   
(c) no substantial question of law is presented in an administrative agency   
appeal and the court does not find the decision unjust or unreasonable, or (d)
for other just cause. New Hampshire Supreme Court Rule 25(5) reads: "Cases    
summarily disposed of under this rule shall not be regarded as establishing   
precedent or cited as authority." 
    The reporter shall, within 120 days after a decision is announced, publish
a *1556 report of each case, including the opinion furnished by the court.    
N.H. Rev. Stat. <section> 505:7 (2004).

  New Jersey 
    An opinion in appropriate form, excluding letter opinions and transcripts 
of oral opinions, shall be published where the decision (1) involves a        
substantial question under the United States or New Jersey Constitution, or   
(2) determines a new and important question of law, or (3) changes, reverses, 
seriously questions or criticizes the soundness of an established principle of
law, or (4) determines a substantial question on which the only case law in   
the State antedates September 15, 1948, or (5) is based upon a matter of      
practice and procedure not theretofore authoritatively determined, or (6) is  
of continuing public interest and importance, or (7) resolves an apparent     
conflict of authority, or (8) although not otherwise meriting publication,    
constitutes a significant and nonduplicative contribution to legal literature 
by providing an historical review of the law, or describing legislative       
history, or containing a collection of cases that should be of substantial aid
to the bench and bar. N.J. R. Gen. Application 1:36-2(d). 
    No unpublished opinion shall constitute precedent or be binding upon any  
court. Except for appellate opinions not approved for publication that have   
been reported in an authorized administrative law reporter, and except to the 
extent required by res judicata, collateral estoppel, the single controversy  
doctrine or any other similar principle of law, no unpublished opinion shall  
be cited by any court. No unpublished opinion shall be cited to any court by  
counsel unless the court and all other parties are served with a copy of the  
opinion and of all other relevant unpublished opinions known to counsel       
including those adverse to the position of the client. N.J. R. Gen.           
Application 1:36-3.

  Affirmance Without Opinion 
    (1) Civil Appeals. When in a civil appeal the Appellate Division          
determines that any one or more of the following circumstances exists and is  
dispositive of a matter submitted to the court for decision:

  (A) that a judgment of a trial court is based on findings of fact which are 
adequately supported by evidence;

  (B) that the evidence in support of a jury verdict is not insufficient;

  (C) that the determination of a trial court on a motion for a new trial does
not constitute a manifest denial of justice;

  (D) that the decision of an administrative agency is supported by sufficient
credible evidence on the record as a whole;

  (E) that some or all of the arguments are made without sufficient merit to  
warrant discussion in a written opinion;

  then and in any such case the judgment or order under appeal may be affirmed
without opinion and by an order quoting the applicable paragraph of this rule.

    (2) Criminal, Quasi-Criminal and Juvenile Appeals. When in an appeal in a 
criminal, quasi-criminal or juvenile matter, the Appellate Division determines
that some or all of the arguments made are without sufficient merit to warrant
*1557 discussion in a written opinion, the court may affirm by specifying such
arguments and quoting this rule and paragraph. N.J. R. App. 2:11-3(e)(1)-(2).

  New Mexico 
    A. Necessity. It is unnecessary for the appellate court to write formal   
opinions in every case. Disposition by order, decision or memorandum opinion  
does not mean that the case is considered unimportant. It does mean that no   
new points of law, making the decision of value as a precedent, are involved. 
    B. Disposition by Order, Decision or Memorandum Opinion. When an appellate
court determines that one or more of the following circumstances exists and is
dispositive of the case, it may dispose of the case by order, decision or     
memorandum opinion: (1) The issues presented have been previously decided by  
the supreme court or court of appeals; (2) The presence or absence of         
substantial evidence disposes of the issue; (3) The issues are answered by    
statute or rules of court; (4) The asserted error is not prejudicial to the   
complaining party; (5) The issues presented are manifestly without merit. 
    C. Publication of Opinions. All formal opinions shall be published in the 
New Mexico Reports. An order, decision or memorandum opinion, because it is   
unreported and not uniformly available to all parties, shall not be published 
nor shall it be cited as precedent in any court. N.M. R. App. P. 12-405.

  New York

  New York does not have a rule forbidding publication or citation, but       
unpublished opinions exist and there is no citation to them in case law.

  North Carolina 
    In order to minimize the cost of publication and of providing storage     
space for the published reports, the Court of Appeals is not required to      
publish an opinion on every decided case. If the panel which hears the case   
determines that the appeal involves no new legal principles and that an       
opinion, if published, would have no value as a precedent, it may direct that 
no opinion be published. N.C. R. App. P. 30(e)(1). 
    A decision without a published opinion is authority only in the case in   
which such decision is rendered and should not be cited in any other case in  
any court for any purpose, nor should any court consider any such decision for
any purpose except in the case in which such decision is rendered. N.C. R.    
App. P. 30(e)(2).

  *1558 North Dakota 
    (a) Affirmance by Summary Opinion. In any case in which the court         
determines after argument, unless waived, that no reversible error of law     
appears and if:

  (1) the appeal is frivolous and completely without merit;

  (2) the judgment of the district court is based on findings of fact that are
not clearly erroneous;

  (3) the verdict or the judgment is supported by substantial evidence;

  (4) the district court did not abuse its discretion;

  (5) the order of an administrative agency is supported by a preponderance of
the evidence;

  (6) the summary judgment, directed verdict, or judgment on the pleadings is 
supported by the record; or,

  (7) a previous controlling appellate decision is dispositive of the appeal, 
the court may affirm by an opinion citing this rule and indicating which one  
or more of the above criteria apply and citing any previous controlling       
appellate decision. The opinion may be in the following form: "Affirmed under 
N.D. R. App. P. 35.1 (a)(1), (2), (3), (4), (5), (6), or (7)."

  (b) Reversal by Summary Opinion. In any case in which the court determines  
after argument, unless waived, that a previous controlling appellate decision 
is dispositive of the appeal, the court may reverse by an opinion citing this 
rule and the controlling appellate decision. N.D. R. App. P. 35.1.

  Citation rules specifically give guidance for published opinions only.      
However, citation to summary dispositions is permitted. 
    (b) Citations After January 1, 1997. When available, initial citations    
must include the volume and initial page number of the North Western Reporter 
in which the opinion is published. The initial citation of any published      
opinion of the Supreme Court or Court of Appeals released on or after January 
1, 1997, contained in a brief, memorandum, or other document filed with any   
trial or appellate court and the citation in the table of cases in a brief    
must also include a reference to the calendar year in which the decision was  
filed, followed by the court designation of "ND" for the Supreme Court or "ND 
App" for the Court of Appeals followed by a sequential number assigned by the 
Clerk of the Supreme Court. A paragraph citation should be placed immediately 
following the sequential number assigned to the case. Subsequent citations    
within the brief, memorandum or other document must include the paragraph     
number and sufficient references to identify the initial citation.

  N.D. R. Ct. 11.6.

  Ohio 
    (A) For purposes of these rules, opinions of the courts of appeals do not 
include orders on procedural matters, orders without opinions, memorandum     
decisions, and judgment entries under Rule 11.1(E) of the Rules of Appellate  
Procedure.

  *1559 (B) All court of appeals opinions shall be posted to the Supreme Court
website. A representative selection of those opinions meeting the criteria in 
Rule 5 of these rules shall be designated for print-publication and printed in
the advance sheets and bound volumes of the Ohio Official Reports. No opinion 
(or part thereof) of a court of appeals shall be designated for               
print-publication unless both of the following apply:

  (1) It is so designated by the Supreme Court Reporter;

  (2) The majority of the court of appeals panel deciding the case agrees.    
Ohio Sup. Ct. Rep. Op. R. 3 
    (A) Notwithstanding the prior versions of these rules, designations of,   
and distinctions between, "controlling" and "persuasive" opinions of the      
courts of appeals based merely upon whether they have been published in the   
Ohio Official Reports are abolished. 
    (B) All court of appeals opinions issued after the effective date of these
rules may be cited as legal authority and weighted as deemed appropriate by   
the courts. 
    (C) Unless otherwise ordered by the Supreme Court, court of appeals       
opinions may always be cited and relied upon for any of the following         
purposes:

  (1) Seeking certification to the Supreme Court of Ohio of a conflict        
question within the provisions of sections 2(B)(2)(f) and 3(B)(4) of Article  
IV of the Ohio Constitution;

  (2) Demonstrating to an appellate court that the decision, or a later       
decision addressing the same point of law, is of recurring importance or for  
other reasons warrants further judicial review;

  (3) Establishing res judicata, estoppel, double jeopardy, the law of the    
case, notice, or sanctionable conduct;

  (4) Any other proper purpose between the parties, or those otherwise        
directly affected by a decision. Ohio S. Ct. Op. R. 4. 
    In designating court of appeals and trial court opinions for              
print-publication, the Supreme Court Reporter and the judiciary shall be      
guided by the following criteria: 
    (A) Does the opinion construe, apply, or clarify recently enacted         
statutory law or administrative rules? 
    (B) Does the opinion explain, modify, criticize, or overrule an existing  
rule of law? 
    (C) Does the opinion apply an established rule of law to facts            
significantly different from those in previously published decisions? 
    (D) Does the opinion otherwise contribute significantly to the development
of the law? Ohio Sup. Ct. Op. R. 5

  Oklahoma 
    (a) Memorandum Opinions. An opinion shall be prepared in memorandum form  
unless it:

  *1560 (1) Establishes a new rule of law or alters or modifies an existing   
rule;

  (2) Involves a legal issue of continuing public interest;

  (3) Criticizes or explains existing law;

  (4) Applies an established rule of law to a factual situation significantly 
different from that in published opinions of the courts of this state;

  (5) Resolves an apparent conflict of authority; or

  (6) Constitutes a significant and non-duplicative contribution to legal     
literature:

  (a) by an historical review of law; or

  (b) by describing legislative history.

  (b) Publication of Memorandum Opinions and Unpublished Opinions.

  . . . . 
  (2) A party or other interested person who believes that an opinion of      
either the Supreme Court or Court of Civil Appeals which has not been         
designated by the Court for publication has substantial precedential value may
file a motion in the Supreme Court asking that it be published. The motion    
shall state the grounds for such belief, shall be accompanied by a copy of the
opinion, and shall comply with Rule 1.6.

  . . . . 
  (4) An opinion shall be published only if the majority of the justices or   
judges participating in the decision find that one of the standards set out in
this rule is satisfied. Concurring and dissenting opinions shall be published 
only if the majority opinion is published. (5) All memorandum opinions, unless
otherwise required to be published, shall be marked: "Not for Official        
Publication." Because unpublished opinions are deemed to be without value as  
precedent and are not uniformly available to all parties, opinions so marked  
shall not be considered as precedent by any court or cited in any brief or    
other material presented to any court, except to support a claim of res       
judicata, collateral estoppel, or law of the case. Opinions marked Not For    
Official Publication shall not be published in the unofficial reporter, nor on
the Supreme Court World Wide Web site, nor in the official reporter. Okla.    
Stat. tit 12, ch. 15, app. 1, R. 1. [FN592]

  Oregon

  Under the Oregon Revised Statute Section 19.435 and the Oregon Rules of     
Appellate Procedure Rule 5.20(5), the supreme court and the court of appeals  
are not required to offer full opinions and may decide cases by memorandum    
decision. According to Serfass and Cranford, supreme court and court of       
appeals affirmances without opinions may be cited but have no authority.      
[FN593]

  *1561 Pennsylvania 
    A. An unpublished memorandum decision shall not be relied upon or cited by
a Court or a party in any other action or proceeding, except that such a      
memorandum decision may be relied upon or cited:

  (1) when it is relevant under the doctrine of law of the case, res judicata,
or collateral estoppel, and

  (2) when the memorandum is relevant to a criminal action or proceeding      
because it recites issues raised and reasons for a decision affecting the same
defendant in a prior action or proceeding. When an unpublished memorandum is  
relied upon pursuant to this rule, a copy of the memorandum must be furnished 
to the other party and to the Court.

  B. After an unpublished memorandum decision has been filed, the panel may   
sua sponte, or on the motion of any party to the appeal, or on request by the 
trial judge, convert the memorandum to a published opinion. In the case of a  
motion or a request from the trial judge, such motion or request must be filed
with the Prothonotary within 14 days after the entry of judgment or other     
order involved. The decision to publish is solely within the discretion of the
panel.

  C. The publication of a decision is within the panel's discretion, however, 
a decision generally should be published when it:

  (1) is by a Court en banc, provided that a majority of the voting members of
the panel may vote to refrain from publication and to decide the appeal by    
memorandum;

  (2) establishes a new rule of law;

  (3) applies an existing rule of law to facts significantly different than   
those stated in prior decisions;

  (4) modifies or criticizes an existing rule of law;

  (5) resolves an apparent conflict of authority;

  (6) involves a legal issue of continuing public interest; or

  (7) constitutes a significant, non-duplicative contribution to law because  
it contains:

  (a) an historical review of the law,

  (b) a review of legislative history,

  (c) a review of conflicting decisions among the courts or other             
jurisdictions.

  D. A judgment order, without separate memorandum decision, may be used to   
decide an appeal where the decision is unanimous and requires minimal         
explanation because it is mandated by established and unquestioned            
precedential decision, statute or principle of law or is based on findings of 
fact which are fully supported by the evidence. Pa. Super. Ct. Internal Op. P.
<section> 65.37; see also Pa. Commw. Ct. Internal Op. P. R. 412, 413 (also    
cited as 210 Pa. Code <section>67.53, 54 (2004)); Pa. Sup. Ct. Internal Op. P.
III.

  Rhode Island

  The General Laws of Rhode Island Sections 8-1-3 and 8-1-6 provide criteria  
for unpublished opinions. 
    (h) Unpublished orders will not be cited by the Court in its opinions and 
such *1562 orders will not be cited by counsel in their briefs. Unpublished   
orders shall have no precedential effect. R.I. Sup. Ct. R., art. 1, R. 16.

  South Carolina 
    (a) Opinions. The appellate court shall make its decisions in writing by  
published opinions or memorandum opinions, with any concurring or dissenting  
opinions attached. Published opinions shall appear in the Official Reports of 
the Supreme Court and the Court of Appeals; memorandum opinions shall not be  
published in the official reports and shall be of no precedential value.      
Published opinions shall be sent to the official reporter and other reporters 
or publishers when the time for rehearing has expired or, if a petition for   
rehearing has been filed, when the petition has been finally decided by the   
appellate court. The court may affirm, reverse, or modify the decision below  
or remand all or any issues for further proceedings. S.C. App. Ct. R. 220. 
    (d) Appellate Court Decisions.

  (2) Memorandum opinions and unpublished orders have no precedential value   
and should not be cited except in proceedings in which they are directly      
involved. S.C. App. Ct. R. 239.

  South Dakota 
    (A) After all briefs have been filed in any appeal, the Supreme Court by  
unanimous action may, sua sponte, enter an order or memorandum opinion        
affirming the judgment or order of the trial court for the reason that it is  
manifest on the face of the briefs and the record that the appeal is without  
merit because:

  (1) the issues are clearly controlled by settled South Dakota law or federal
law binding upon the states;

  (2) the issues are factual and there clearly is sufficient evidence to      
support the jury verdict or findings of fact below; or

  (3) the issues are ones of judicial discretion and there clearly was not an 
abuse of discretion.

  (E) A list indicating the disposition of all decisions rendered by the      
Supreme Court under this section shall be published quarterly in the          
Northwestern Reporter. Such decisions shall not be cited or relied upon as    
authority in any litigation in any court in South Dakota except when the      
decision establishes the law of the case, res judicata or collateral estoppel,
or in a criminal action or proceeding involving the same defendant or a       
disciplinary action or proceeding involving the same person. S.D. Codified    
Laws <section>15-26A-87.1 (2004).

  *1563 Tennessee 
    (E) If an application for permission to appeal is filed and denied, the   
opinion of the intermediate appellate court may be published in the official  
reporter in accordance with the rules of the intermediate appellate court if  
the opinion meets one or more of the following standards of publication:

  (i) the opinion establishes a new rule of law, alters or modifies an        
existing rule, or applies an existing rule to set of facts significantly      
different from those stated in other published opinions;

  (ii) the opinion involves a legal issue of continuing public interest;

  (iii) the opinion criticizes, with the reasons given, an existing rule of   
law;

  (iv) the opinion resolves an apparent conflict of authority, whether or not 
the earlier opinion or opinions are reported;

  (v) the opinion updates, clarifies or distinguishes a principle of law; or

  (vi) the opinion makes a significant contribution to legal literature by    
reviewing either the development of a common law rule or the legislative or   
judicial history of a provision of a constitution, statute, or other written  
law. See Court of Appeals Rule 11(b) and Court of Criminal Appeals Rule       
19.1(a).

  (F) (1) If an application for permission to appeal is hereafter denied by   
this Court with a "Not for Citation" designation, the opinion of the          
intermediate appellate court has no precedential value.

  (2) An opinion so designated shall not be published in any official reporter
nor cited by any judge in any trial or appellate court decision, or by any    
litigant in any brief, or other material presented to any court, except when  
the opinion is the basis for a claim of res judicata, collateral estoppel, law
of the case, or to establish a split of authority, or when the opinion is     
relevant to a criminal, post-conviction or habeas corpus action involving the 
same defendant.

  (3) From and after the effective date of this Rule, the precedential and    
citation value applicable to intermediate appellate court decisions designated
"Not for Citation," shall also apply to intermediate appellate court decisions
which have previously been designated, "Denied, Concurring in Results Only"   
(DCRO), or "Denied, Not for Publication," (DNP).

  (G) If no application for permission to appeal is filed, or if an           
application is filed but dismissed as untimely, publication of the            
intermediate appellate court opinion shall proceed in accordance with either  
Court of Appeals Rule 11 or Court of Criminal Appeals Rule 19.

  (H) (1) An unpublished opinion shall be considered controlling authority    
between the parties to the case when relevant under the doctrines of the law  
of the case, res judicata, collateral estoppel, or in a criminal,             
post-conviction, or habeas corpus action involving the same defendant. Unless 
designated "Not For Citation," "DCRO" or "DNP" pursuant to subsection (F) of  
this Rule, unpublished opinions for all other purposes shall be considered    
persuasive authority. Unpublished opinions of the Special Workers'            
Compensation Appeals Panel shall likewise be considered persuasive authority. 
Tenn. Sup. Ct. R. 4.

  Texas 
    An opinion must be designated a memorandum opinion unless it does any of  
*1564 the following:

  (a) establishes a new rule of law, alters or modifies an existing rule, or  
applies an existing rule to a novel fact situation likely to recur in future  
cases;

  (b) involves issues of constitutional law or other legal issues important to
the jurisprudence of Texas;

  (c) criticizes existing law; or

  (d) resolves an apparent conflict of authority. Tex R. App. P. 47.4 
    Opinions not designated for publication by the court of appeals under     
these or prior rules have no precedential value (but may be cited with the    
notation "not designated for publication") and must not be cited as authority 
by counsel or by a court. Tex R. App. P. 47.7; see also Tex. R. App. P. 67,   
77.2, 77.3 for publication rules in the Court of Criminal Appeals.

  Utah

  Utah Rules of Appellate Procedure, Rules 30(c), (d) provide for opinions    
without written reasons. 
    The following are matters which the court may consider for expedited      
decision without opinion: (1) appeals involving uncomplicated factual issues  
based primarily on documents; (2) summary judgments; (3) dismissals for       
failure to state a claim; (4) dismissals for lack of personal or subject      
matter jurisdiction; and (5) judgments or orders based on uncomplicated issues
of law. The court will not grant a motion for an appeal in cases raising      
substantial constitutional issues, issues of significant public interest,     
issues of law of first impression, or complicated issues of fact or law. Utah 
R. App. P. 31(b), (d)

  Any opinion that is not published is not citable except in limited          
circumstances. Utah Code Jud. Admin. R.4-508, 4-605.

  Appeals decided under this rule will not stand as precedent but, in other   
respects, will have the same force and effect as other decisions of the court.
Utah R. App. P. 31.

  Vermont

  Vermont Rules of Appellate Procedure, Rule 33.2 provides criteria for  "full
opinions." 
    (a) Orders. In any case, the Court, if all members not disqualified agree,
may order that the matter be set for oral argument before a panel of three    
justices. If all parties of record are represented by counsel, the Court may  
direct that the matter be submitted on briefs, without oral argument.

  (b) Disposition after Argument Before Three Justices; Additional Briefing,  
etc. Any matter as to which oral argument has been heard by a panel of three  
*1565 justices shall be decided by unanimous opinion of the three justices.   
The panel may, and if a unanimous decision cannot be reached on the merits,   
shall, direct that the matter be reargued before the full Court. The panel    
may, prior to determining that a unanimous decision cannot be reached, retain 
the matter and direct that additional briefing be submitted. If argument      
before the full Court is ordered, the Court may issue an additional order     
setting forth matters to be reargued or rebriefed.

  (c) Nonprecedential Status of Decisions. An entry order decision issued by a
three-justice panel that is not published in the Vermont Reports may be cited 
as persuasive authority but shall not be considered as controlling precedent. 
Such a decision may also be cited and may be controlling with respect to      
issues of claim preclusion, law of the case, and similar issues involving the 
parties or facts of the case in which the decision was issued. Vt. R. App. P. 
33.1.

  Virginia

  According to Serfass and Cranford, the supreme court determines by judicial 
discretion during conferences which cases will be decided by order and which  
will be decided by a published opinion. According to Virginia Code Annotated, 
Section 17.1-413(A) (2004), the court of appeals in its discretion may render 
its decision by order or memorandum opinion. In Grajales v. Commonwealth, 353 
S.E.2d 789, 790 n.1 (Va. App. 1987), the court ruled that "[u]npublished      
memorandum opinions of [the Court of Appeals] are not to be cited or relied   
upon as precedent" with a few exceptions (establishing res judicata, estoppel,
or the law of the case). In Fairfax County Sch. Bd. v. Rose, 509 S.E.2d 525,  
528 n.3 (Va. App. 1999), the court ruled that "a court or the commission does 
not err by considering the rationale [of an unpublished opinion] and adopting 
it to the extent that it is persuasive." [FN594]

  Washington 
    (d) Publication of opinions--Court of Appeals. A majority of the panel    
issuing an opinion will determine if it will be printed in the Washington     
Appellate Reports pursuant to RCW 2.06.040 or be filed for public record only.
In determining whether the opinion will be published in the Washington        
Appellate Reports, the panel will use at least the following criteria: (1)    
Whether the decision determines an unsettled or new question of law or        
constitutional principle; (2) Whether the decision modifies, clarifies or     
reverses an established principle of law; (3) Whether a decision is of general
public interest or importance; or (4) Whether a case is in conflict with a    
prior opinion of the Court of Appeals.

  Wash. R. App. P. 12.3. 
    *1566 (e) Motion to publish. A motion requesting the Court of Appeals to  
publish an opinion that had been ordered filed for public record should be    
filed within 20 days after the opinion has been filed. If the motion is made  
by a person not a party, the motion must include a statement of (1)           
applicant's interest and the person or group applicant represents and (2)     
applicant's reasons for believing that publication is necessary. Wash. R. App.
P. 12.3. 
    (h) Unpublished opinions. A party may not cite as an authority an         
unpublished opinion of the Court of Appeals. Unpublished opinions of the Court
of Appeals are those opinions not published in the Washington Appellate       
Reports. Wash. R. App. P. 10.4.

  West Virginia

  In Lieving v. Hadley, 423 S.E.2d 600, 604 n.4 (W. Va. 1992), the court      
wrote: 
    Per curiam opinions . . . are used to decide only the specific case before
the Court; everything in a per curiam opinion beyond the syllabus point is    
merely obiter dicta. A per curiam opinion that appears to deviate from        
generally accepted rules of law is not binding on the circuit courts, and     
should be relied upon only with great caution. [FN595]

  Unpublished opinions of the Supreme Court of Appeals are of no precedential 
value and may not be cited in any court of the state as precedent or authority
except to support a claim of res judicata, collateral estoppel, or law of the 
case. Pugh v. Workers' Comp. Comm'r, 424 S.E.2d 759 (W. Va. 1992); see also W.
Va. Const. art. VIII, <section> 4.

  Wisconsin

  Includes criteria for publication and criteria for nonpublication. 
    (1) CRITERIA FOR PUBLICATION.

  (a) While neither controlling nor fully measuring the courts' discretion,   
criteria for publication in the official reports of an opinion of the court   
include whether the opinion:

  1. Enunciates a new rule of law or modifies, clarifies or criticizes an     
existing rule;

  2. Applies an established rule of law to a factual situation significantly  
different from that in published opinions;

  3. Resolves or identifies a conflict between prior decisions;

  4. Contributes to the legal literature by collecting case law or reciting   
legislative history; or

  5. Decides a case of substantial and continuing public interest.

  (b) An opinion should not be published when:

  *1567 1. The issues involve no more than the application of well-settled    
rules of law to a recurring fact situation;

  2. The issue asserted is whether the evidence is sufficient to support the  
judgment and the briefs show the evidence is sufficient;

  3. The issues are decided on the basis of controlling precedent and no      
reason appears for questioning or qualifying the precedent;

  4. The decision is by one court of appeals judge under <section> 752.31 (2) 
and (3);

  5. It is a per curiam opinion on issues other than appellate jurisdiction or
procedure;

  6. It has no significant value as precedent.

  (2) DECISION ON PUBLICATION. The judges of the court of appeals who join in 
an opinion in an appeal or other proceeding shall make a recommendation on    
whether the opinion should be published. A committee composed of the chief    
judge or a judge of the court of appeals designated by the chief judge and one
judge from each district of the court of appeals selected by the court of     
appeals judges of each district shall determine whether an opinion is to be   
published.

  (3) UNPUBLISHED OPINIONS NOT CITED. An unpublished opinion is of no         
precedential value and for this reason may not be cited in any court of this  
state as precedent or authority, except to support a claim of claim           
preclusion, issue preclusion, or the law of the case. Wis. Stat. <section>    
809.23 (2004).

  Wyoming

  According to Wyoming Rules of Appellate Procedure, Rule 9.06, the appellate 
court may issue a ruling without a published decision when all parties        
stipulate in writing that they request it. Such abbreviated opinions are not  
published or generally disseminated and do not constitute precedent of the    
appellate court.
                                       
                     Federal Circuit Courts First Circuit
    (a) Opinions Generally. The volume of filings is such that the court      
cannot dispose of each case by opinion. Rather it makes a choice, reasonably  
accommodated to the particular case, whether to use an order, memorandum and  
order, or opinion. An opinion is used when the decision calls for more than   
summary explanation. However, in the interests both of expedition in the      
particular case, and of saving time and effort in research on the part of     
future litigants, some opinions are rendered in unpublished form; that is, the
opinions are directed to the parties but are not otherwise published in the   
official West reporter, and may not be cited in unrelated cases. As indicated 
in Local Rule 36(b), the court's policy, when opinions are used, is to prefer 
that they be published; but in limited situations, described in Local Rule    
36(b), where opinions are likely not to break new legal ground or contribute  
otherwise to *1568 legal development, they are issued in unpublished form.

  (b) Publication of Opinions. The Judicial Council of the First Circuit,     
pursuant to resolution of the Judicial Conference of the United States, hereby
adopts the following plan for the publication of opinions of the United States
Court of Appeal for the First Circuit.

  (1) Statement of Policy. In general, the court thinks it desirable that     
opinions be published and thus be available for citation. The policy may be   
overcome in some situations where an opinion does not articulate a new rule of
law, modify an established rule, apply an established rule to novel facts or  
serve otherwise as a significant guide to future litigants. (Most opinions    
dealing with claims for benefits under the Social Security Act, 42 U.S.C.     
<section> 205(g), will clearly fall within the exception.)

  (2) Manner of Implementation.

  (A) As members of a panel prepare for argument, they shall give thought to  
the appropriate mode of disposition (order, memorandum and order, unpublished 
opinion, published opinion). At conference the mode of disposition shall be   
discussed and, if feasible, agreed upon. Any agreement reached may be altered 
in the light of further research and reflection.

  (B) With respect to cases decided by a unanimous panel with a single        
opinion, if the writer recommends that the opinion not be published, the      
writer shall so state in the cover letter or memorandum accompanying the      
draft. After an exchange of views, should any judge remain of the view that   
the opinion should be published, it must be.

  (C) When a panel decides a case with a dissent, or with more than one       
opinion, the opinion or opinions shall be published unless all the            
participating judges decide against publication. In any case decided by the   
court en banc the opinion or opinions shall be published.

  (D) Any party or other interested person may apply for good cause shown to  
the court for publication of an unpublished opinion.

  (E) If a district court opinion in a case has been published, the order of  
court upon review shall be published even when the court does not publish an  
opinion.

  (F) Unpublished opinions of this court may be cited in filings with or      
arguments to this court only in related cases. Otherwise only published       
opinions may be cited. A published opinion is one that appears in the ordinary
West Federal Reporter series (not including West's Federal Appendix) or as a  
recent opinion intended to be so published. All slip opinions released by the 
clerk's office are intended to be so published unless they bear the legend    
"Not For Publication" or some comparable phraseology.

  (G) Periodically the court shall conduct a review in an effort to improve   
its publication policy and implementation. U.S. Ct. App. 1st Cir. Loc. R. 36.

  Second Circuit 
    The demands of an expanding case load require the court to be ever        
conscious of the need to utilize judicial time effectively. Accordingly, in   
those cases in *1569 which decision is unanimous and each judge of the panel  
believes that no jurisprudential purpose would be served by a written opinion,
disposition will be made in open court or by summary order. 
    Where a decision is rendered from the bench, the court may deliver a brief
oral statement, the record of which is available to counsel upon request and  
payment of transcription charges. Where disposition is by summary order, the  
court may append a brief written statement to that order. Since these         
statements do not constitute formal opinions of the court and are unreported  
or not uniformly available to all parties, they shall not be cited or         
otherwise used in unrelated cases before this or any other court. U.S. Ct.    
App. 2d Cir. Loc. R. 0.23.

  Third Circuit 
    5.1 Forms of Opinions. 
    There are two forms of opinions: precedential and not precedential. A     
majority of the panel determines whether an opinion is designated as          
precedential or not precedential, unless a majority of the active judges of   
the court decides otherwise. The face of an opinion states whether it is      
precedential or not precedential. 
    5.2 Precedential Opinions. 
    An opinion, whether signed or per curiam, is designated as precedential   
and printed as a slip opinion when it has precedential or institutional value.

    5.3 Not Precedential Opinions. 
    An opinion, whether signed or per curiam, that appears to have value only 
to the trial court or the parties is designated as not precedential and is not
printed as a slip opinion but, unless otherwise provided by the court, it is  
posted on the court's internet website. A not precedential opinion may be     
issued without regard to whether the panel's decision is unanimous and without
regard to whether the panel affirms, reverses, or grants other relief. 
    5.7 Citations. 
    The court by tradition does not cite to its not precedential opinions as  
authority. Such opinions are not regarded as precedents that bind the court   
because they do not circulate to the full court before filing. U.S. Ct. App.  
3d Cir. Loc. R. 5.

  Fourth Circuit

  Publication of Decisions 
    Opinions delivered by the Court will be published only if the opinion     
satisfies one or more of the standards for publication:

  i. It establishes, alters, modifies, clarifies, or explains a rule of law   
within this Circuit; or

  ii.It involves a legal issue of continuing public interest; or

  iii. It criticizes existing law; or

  iv. It contains a historical review of a legal rule that is not duplicative;
or

  v. It resolves a conflict between panels of this Court, or creates a        
conflict with a decision in another circuit. 
    *1570 The Court will publish opinions only in cases that have been fully  
briefed and presented at oral argument. Opinions in such cases will be        
published if the author or a majority of the joining judges believes the      
opinion satisfies one or more of the standards for publication, and all       
members of the Court have acknowledged in writing their receipt of the        
proposed opinion. A judge may file a published opinion without obtaining all  
acknowledgments only if the opinion has been in circulation for ten days. U.S.
Ct. App. 4th Cir. Loc. R. 36(a).

  Unpublished Dispositions 
    Unpublished opinions give counsel, the parties, and the lower court or    
agency a statement of the reasons for the decision. They may not recite all of
the facts or background of the case and may simply adopt the reasoning of the 
lower court. They are sent only to the trial court or agency in which the case
originated, to counsel for all parties in the case, and to litigants in the   
case not represented by counsel. Any individual or institution may receive    
copies of all published and certain unpublished opinions of the Court by      
paying an annual subscription fee for this service. In addition, copies of    
such opinions are sent to all circuit judges, district judges, bankruptcy     
judges, magistrate judges, clerks of district court, United States Attorneys, 
and Federal Public Defenders upon request. All opinions are available on ABBS,
the Appellate Bulletin Board System, for a minimum of six months after        
issuance. The Federal Reporter periodically lists the result in all cases     
involving unpublished opinions. Copies of any unpublished opinion are retained
in the file of the case in the Clerk's Office and a copy may be obtained from 
the Clerk's Office for $2.00. 
    Counsel may move for publication of an unpublished opinion, citing        
reasons. If such motion is granted, the unpublished opinion will be published 
without change in result. U.S. Ct. App. 4th Cir. Loc. R. 36(b).

  Citation of Unpublished Dispositions 
    In the absence of unusual circumstances, this Court will not cite an      
unpublished disposition in any of its published opinions or unpublished       
dispositions. Citation of this Court's unpublished dispositions in briefs and 
oral arguments in this Court and in the district courts within this Circuit is
disfavored, except for the purpose of establishing res judicata, estoppel, or 
the law of the case. 
    If counsel believes, nevertheless, that an unpublished disposition of any 
court has precedential value in relation to a material issue in a case and    
that there is no published opinion that would serve as well, such disposition 
may be cited if counsel serves a copy thereof on all other parties in the case
and on the Court. Such service may be accomplished by including a copy of the 
disposition in an attachment or addendum to the brief pursuant to the         
procedures set forth in Local Rule 28(b). U.S. Ct. App. 4th Cir. Loc. R.      
36(c).

  *1571 Fifth Circuit 
    47.5  Publication of Opinions. 
    47.5.1  Criteria for Publication. The publication of opinions that merely 
decide particular cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal profession. However,  
opinions that may in any way interest persons other than the parties to a case
should be published. Therefore, an opinion is published if it:

  (a) Establishes a new rule of law, alters, or modifies an existing rule of  
law, or calls attention to an existing rule of law that appears to have been  
generally overlooked;

  (b) Applies an established rule of law to facts significantly different from
those in previous published opinions applying the rule;

  (c) Explains, criticizes, or reviews the history of existing decisional or  
enacted law;

  (d) Creates or resolves a conflict of authority either within the circuit or
between this circuit and another;

  (e) Concerns or discusses a factual or legal issue of significant public    
interest; or (f) Is rendered in a case that has been reviewed previously and  
its merits addressed by an opinion of the United States Supreme Court.

  An opinion may also be published if it:

  Is accompanied by a concurring or dissenting opinion; or reverses the       
decision below or affirms it upon different grounds. 
    47.5.2 Publication Decision. An opinion shall be published unless each    
member of the panel deciding the case determines that its publication is      
neither required nor justified under the criteria for publication. If any     
judge of the court or any party so requests the panel shall reconsider its    
decision not to publish an opinion. The opinion will be published if, upon    
reconsideration, each member of the panel determines that it meets one or more
of the criteria for publication or should be published for any other good     
reason, and the panel issues an order to publish the opinion. 
    47.5.3 Unpublished Opinions Issued Before January 1, 1996. * Unpublished  
opinions issued before January 1, 1996, * are precedent. However, because     
every opinion believed to have precedential value is published, such an       
unpublished opinion should normally be cited only when the doctrine of res    
judicata, collateral estoppel or law of the case is applicable (or similarly  
to show double jeopardy, abuse of the writ, notice, sanctionable conduct,     
entitlement to attorney's fees, or the like). A copy of any unpublished       
opinion cited in any document being submitted to the court, must be attached  
to each copy of the document. U.S. Ct. App. 5th Cir. Loc. R. 47.  Sixth       
Circuit

  Publication of Decisions 
    (a) Criteria for Publication. The following criteria shall be considered  
by panels in determining whether a decision will be designated for publication
in *1572 the Federal Reporter:

  (1) whether it establishes a new rule of law, or alters or modifies an      
existing rule of law, or applies an established rule to a novel fact          
situation;

  (2) whether it creates or resolves a conflict or authority either within the
circuit or between this circuit and another;

  (3) whether it discusses a legal or factual issue of continuing public      
interest;

  (4) whether it is accompanied by a concurring or dissenting opinion;

  (5) whether it reverses the decision below, unless:

  (A) the reversal is caused by an intervening change in law or fact, or,

  (B) the reversal is a remand (without further comment) to the district court
of a case reversed or remanded by the Supreme Court;

  (6) whether it addresses a lower court or administrative agency decision    
that has been published; or,

  (7) whether it is a decision that has been reviewed by the United States    
Supreme Court.

  (b) Designation for Publication. An opinion or order shall be designated for
publication upon the request of any member of the panel. U.S. Ct. App. 6th    
Cir. R. 206. 
    (g) Citation of Unpublished Decisions. Citation of unpublished decisions  
in briefs and oral arguments in this Court and in the district courts within  
this Circuit is disfavored, except for the purpose of establishing res        
judicata, estoppel, or the law of the case. If a party believes, nevertheless,
that an unpublished disposition has precedential value in relation to a       
material issue in a case, and that there is no published opinion that would   
serve as well, such decision may be cited if that party serves a copy thereof 
on all other parties in the case and on this Court. Such service shall be     
accomplished by including a copy of the decision in an addendum to the brief. 
U.S. Ct. App. 6th Cir. R. 28.

  Seventh Circuit

  Plan for Publication of Opinions of the Seventh Circuit Promulgated Pursuant
to Resolution of the Judicial Conference of the United States 
    (a) Policy. It is the policy of the circuit to reduce the proliferation of
published opinions.

  (b) Publication. The court may dispose of an appeal by an order or by an    
opinion, which may be signed or per curiam. Orders shall not be published and 
opinions shall be published.

  (1) "Published" or "publication" means:

  (i) Printing the opinion as a slip opinion;

  (ii) Distributing the printed slip opinion to all federal judges within the 
circuit, legal publishing companies, libraries and other regular subscribers, 
interested United States attorneys, departments and agencies, and the news    
media; and

  (iii) Unlimited citation as precedent.

  *1573 (2) Unpublished orders:

  (i) Shall be typewritten and reproduced by copying machine;

  (ii) Shall be distributed only to the circuit judges, counsel for the       
parties in the case, the lower court judge or agency in the case, and the news
media, and shall be available to the public on the same basis as any other    
pleading in the case;

  (iii) Shall be available for listing periodically in the Federal Reporter   
showing only title, docket number, date, district or agency appealed from with
citation of prior opinion (if reported), and the judgment or operative words  
of the order, such as "affirmed," "enforced," "reversed," "reversed and       
remanded," and so forth;

  (iv) Except to support a claim of res judicata, collateral estoppel or law  
of the case, shall not be cited or used as precedent

  (A) in any federal court within the circuit in any written document or in   
oral argument; or

  (B) by any such court for any purpose.

  (c) Guidelines for Method of Disposition.

  (1) Published Opinions. A published opinion will be filed when the decision

  (i) establishes a new, or changes an existing rule of law;

  (ii) involves an issue of continuing public interest;

  (iii) criticizes or questions existing law;

  (iv) constitutes a significant and non-duplicative contribution to legal    
literature

  (A) by a historical review of law,

  (B) by describing legislative history, or

  (C) by resolving or creating a conflict in the law;

  (v) reverses a judgment or denies enforcement of an order when the lower    
court or agency has published an opinion supporting the judgment or order; or

  (vi) is pursuant to an order of remand from the Supreme Court and is not    
rendered merely in ministerial obedience to specific directions of that Court.

  (2) Unpublished Orders. When the decision does not satisfy the criteria for 
publication, as stated above, it will be filed as an unpublished order. The   
order will ordinarily contain reasons for the judgment, but may not do so if  
the court has announced its decision and reasons from the bench. A statement  
of facts may be omitted from the order or may not be complete or detailed.

  (d) Determination of Whether Disposition is to be by Order or Opinion.

  (1) The determination to dispose of an appeal by unpublished order shall be 
made by a majority of the panel rendering the decision.

  (2) The requirement of a majority represents the policy of this circuit.    
Notwithstanding the right of a single federal judge to make an opinion        
available for publication, it is expected that a single judge will ordinarily 
respect and abide by the opinion of the majority in determining whether to    
publish.

  (3) Any person may request by motion that a decision by unpublished order be
issued as a published opinion. The request should state the reasons why the   
publication would be consistent with the guidelines for *1574 method of       
disposition set forth in this rule.

  (e)[Citation of Unpublished Opinion or Order.] Except to the purposes set   
forth in Circuit Rule 53(b)(2)(iv), no unpublished opinion or order of any    
court may be cited in the Seventh Circuit if citation is prohibited in the    
rendering court. U.S. Ct. App. 7th Cir. R. 53.

  Eighth Circuit

  Appendix. 
    The Judicial Council of the Eighth Circuit, pursuant to a resolution of   
the Judicial Conference of the United States, hereby adopts the following plan
for the preparation and publication of opinions of the United States Court of 
Appeals for the Eighth Circuit.

  1. It is unnecessary for the Court to write an opinion in every case or to  
publish every opinion written. The disposition without opinion or the         
nonpublication of an opinion does not mean that the case is considered        
unimportant. It does mean that an opinion in the case will not add to the body
of law and will not have value as precedent.

  2. An opinion will not be written in cases disposed of under Local Rule 14.

  3. The Court or a panel will determine which of its opinions are to be      
published, except that a judge may make any of his opinions available for     
publication. The decision on publication of an opinion will ordinarily be made
prior to its preparation. The direction as to publication will appear on the  
face of the opinion. Unpublished opinions, since they are unreported and not  
uniformly available to all parties, may not be cited or otherwise used in any 
proceedings before this "court or any district court in this circuit" except  
when the cases are related by virtue of an identity between the parties or the
causes of action.

  4. An opinion should be published when the case or opinion:

  (a) establishes a new rule of law or questions or changes an existing rule  
of law in this Circuit,

  (b) is a new interpretation of or conflicts with a decision of a federal or 
state appellate court,

  (c) applies an established rule of law to a factual situation significantly 
different from that in published opinions,

  (d) involves a legal or factual issue of continuing or unusual public or    
legal interest,

  (e) does not accept the rationale of a previously published opinion in that 
case, or

  (f) is a significant contribution to legal literature through historical    
review or resolution of an apparent conflict. U.S. Ct. App. 8th Cir., App. 
    i) Citation of Unpublished Opinion. Unpublished opinions are decisions    
which a court designates for unpublished status. They are not precedent and   
parties generally should not cite them. When relevant to establishing the     
doctrines of *1575 res judicata, collateral estoppel, or the law of the case, 
however, the parties may cite any unpublished opinion. Parties may also cite  
an unpublished opinion of this court if the opinion has persuasive value on a 
material issue and no published opinion of this or another court would serve  
as well. A party who cites an unpublished opinion in a document must attach a 
copy of the unpublished opinion to the document. A party who cites an         
unpublished opinion for the first time at oral argument must attach a copy of 
the unpublished opinion to the supplemental authority letter required by Fed. 
R. App. P. 28(j). When citing an unpublished opinion, a party must indicate   
the opinion's unpublished status. U.S. Ct. App. 8th Cir. R. 28A.

  Ninth Circuit

  Opinions, Memoranda, Orders; Publication 
    Each written disposition of a matter before this Court shall bear under   
the number in the caption the designation OPINION, or MEMORANDUM, or ORDER. A 
written, reasoned disposition of a case or motion which is designated as an   
opinion under Circuit Rule 36-2 is an OPINION of the Court. It may be an      
authored opinion or a per curiam opinion. A written, reasoned disposition of a
case or a motion which is not intended for publication under Circuit Rule 36-2
is a MEMORANDUM. Any other disposition of a matter before the Court is an     
ORDER. A memorandum or order shall not identify its author, nor shall it be   
designated "Per Curiam." 
    All opinions are published; no memoranda are published; orders are not    
published except by order of the court. As used in this rule, the term        
PUBLICATION means to make a disposition available to legal publishing         
companies to be reported and cited. U.S. Ct. App. 9th Cir. R. 36-1.

  Criteria for Publication 
    A written, reasoned disposition shall be designated as an OPINION only if 
it:

  (a) Establishes, alters, modifies or clarifies a rule of law, or

  (b) Calls attention to a rule of law which appears to have been generally   
overlooked, or

  (c) Criticizes existing law, or

  (d) Involves a legal or factual issue of unique interest or substantial     
public importance, or

  (e) Is a disposition of a case in which there is a published opinion by a   
lower court or administrative agency, unless the panel determines that        
publication is unnecessary for clarifying the panel's disposition of the case,
or

  (f) Is a disposition of a case following a reversal or remand by the United 
States Supreme Court, or

  (g) Is accompanied by a separate concurring or dissenting expression, and   
the author of such separate expression requests publication of the disposition
of the Court and the separate expression. U.S. Ct. App. 9th. Cir. R. 36-2.

  *1576 Request for Publication 
    Publication of any unpublished disposition may be requested by letter     
addressed to the Clerk, stating concisely the reasons for publication. Such a 
request will not be entertained unless received within 60 days of the issuance
of this Court's disposition. A copy of the request for publication must be    
served on the parties to the case. The parties will have 10 days from the date
of service to notify the Court of any objections they may have to the         
publication of the disposition. If such a request is granted, the unpublished 
disposition will be redesignated an opinion. U.S. Ct. App. 9th Cir. R. 36-4.

  Citation of Unpublished Dispositions or Orders 
    (a) Not Precedent: Unpublished dispositions and orders of this Court are  
not binding precedent, except when relevant under the doctrine of law of the  
case, res judicata, or collateral estoppel.

  (b) Citation: Unpublished dispositions and orders of this Court may not be  
cited to or by the courts of this circuit except in the following             
circumstances.

  (i) They may be cited to this Court or to or by any other court in this     
circuit when relevant under the doctrine of law of the case, res judicata, or 
collateral estoppel.

  (ii) They may be cited to this Court or by any other courts in this circuit 
for factual purposes, such as to show double jeopardy, sanctionable conduct,  
notice, entitlement to attorneys' fees, or the existence of a related case.

  (iii) They may be cited to this Court in a request to publish a disposition 
or order made pursuant to Circuit Rule 36-4, or in a petition for panel       
rehearing or rehearing en banc, in order to demonstrate the existence of a    
conflict among opinions, dispositions, or orders.

  (c) Attach Copy: A copy of any cited unpublished disposition or order must  
be attached to the document in which it is cited, as an appendix. U.S. Ct.    
App. 9th Cir. R. 36-3.

  Tenth Circuit

  Orders and judgments 
    The court does not write opinions in every case. The court may dispose of 
an appeal or petition without written opinion. Disposition without opinion    
does not mean that the case is unimportant. It means that the case does not   
require application of new points of law that would make the decision a       
valuable precedent. U.S. Ct. App. 10th Cir. R. 36.1.

  Publication 
    When the opinion of the district court, an administrative agency, or the  
Tax *1577 Court has been published, this court ordinarily designates its      
disposition for publication. If the disposition is by order and judgment, the 
court will publish only the result of the appeal. U.S. Ct. App. 10th Cir. R.  
36.2.

  Citation of unpublished opinions/orders and judgments 
    (A) Not precedent. Unpublished orders and judgments of this court are not 
binding precedents, except under the doctrines of law of the case, res        
judicata, and collateral estoppel.

  (B) Reference. Citation of an unpublished decision is disfavored. But an    
unpublished decision may be cited if:

  (1) it has persuasive value with respect to a material issue that has not   
been addressed in a published opinion; and

  (2) it would assist the court in its disposition.

  (C) Attach copy. A copy of an unpublished decision must be attached to any  
document that cites it. If an unpublished decision is cited at oral argument, 
the citing party must provide a copy to the court and the other parties. U.S. 
Ct. App. 10th Cir. R. 36.3.

  Eleventh Circuit

  Affirmance Without Opinion 
    When the court determines that any of the following circumstances exist:

  (a) judgment of the district court is based on findings of fact that are not
clearly erroneous;

  (b) the evidence in support of a jury verdict is sufficient;

  (c) the order of an administrative agency is supported by substantial       
evidence on the record as a whole;

  (d) summary judgment, directed verdict, or judgment on the pleadings is     
supported by the record;

  (e) judgment has been entered without a reversible error of law; and an     
opinion would have no precedential value, the judgment or order may be        
affirmed or enforced without opinion. U.S. Ct. App. 11th Cir. R. 36.1.

  Unpublished Opinions 
    An opinion shall be unpublished unless a majority of the panel decides to 
publish it. Unpublished opinions are not considered binding precedent. They   
may be cited as persuasive authority, provided that a copy of the unpublished 
opinion is attached to or incorporated within the brief, petition, motion or  
response in which such citation is made. U.S. Ct. App. 11th Cir. R. 36.2.

  Publishing Unpublished Opinions 
    At any time before the mandate has issued, the panel, on its own motion or
*1578 upon the motion of a party, may by unanimous vote order a previously    
unpublished opinion to be published. The timely filing of a motion to publish 
shall stay issuance of the mandate until disposition thereof unless otherwise 
ordered by the court. The time for issuance of the mandate and for filing a   
petition for rehearing or petition for rehearing en banc shall begin running  
anew from the date of any order directing publication. U.S. Ct. App. 11th Cir.
R. 36.3.

  D.C. Circuit

  Decisions of the Court; Opinions and Abbreviated Dispositions 
    (a) Opinions of the Court.

  (1) Policy. It is the policy of this Court to publish opinions and          
explanatory memoranda that have general public interest.

  (2) Published Opinions. An opinion, memorandum, or other statement          
explaining the basis for the court's action in issuing an order or judgment   
will be published if it meets one or more of the following criteria:

  (A) with regard to a substantial issue it resolves, it is a case of first   
impression or the first case to present the issue in this court;

  (B) it alters, modifies, or significantly clarifies a rule of law previously
announced by the court;

  (C) it calls attention to an existing rule of law that appears to have been 
generally overlooked;

  (D) it criticizes or questions existing law;

  (E) it resolves an apparent conflict in decisions within the circuit or     
creates a conflict with another circuit;

  (F) it reverses a published agency or district court decision, or affirms a 
decision of the district court upon grounds different from those set forth in 
the district court's published opinion;

  (G) it warrants publication in light of other factors that give it general  
public interest.

  All published opinions of the court, prior to issuance, will be circulated  
to all judges on the court; printed prior to release, unless otherwise        
ordered; and rendered by being filed with the clerk.

  (b) Abbreviated Dispositions. The court may, while according full           
consideration to the issues, dispense with published opinions where the issues
occasion no need therefor, and confine its action to such abbreviated         
disposition as it may deem appropriate, e.g., affirmance by order of a        
decision or judgment of a court or administrative agency, a judgment of       
affirmance or reversal, containing a notation of precedents, or accompanied by
a brief memorandum. If the parties have agreed to such disposition, they may  
so state in their briefs or may so stipulate at any time prior to decision. In
any such case the court will promptly issue a judgment unless compelling      
reasons otherwise dictate.

  (c) Unpublished Opinions.

  (1) An opinion, memorandum, or other statement explaining the basis for this
court's action in issuing an order or judgment under subsection (b) above,    
which does not satisfy any of the criteria for publication set out in         
subsection (a) above, will nonetheless be circulated to all judges on the     
*1579 court prior to issuance. A copy of each such unpublished opinion,       
memorandum, or statement will be retained as part of the case file in the     
clerk's office and be publicly available there on the same basis as any       
published opinion.

  (2) While unpublished orders and judgments may be cited to the court in     
accordance with Circuit Rule 28(c)(1)(B), a panel's decision to issue an      
unpublished disposition means that the panel sees no precedential value in    
that disposition.

  (d) Motion to Publish. Any person may, by motion made within 30 days after  
judgment or, if a timely petition for rehearing is made, within 30 days after 
action thereon, request that an unpublished opinion be published. Motions     
filed out of time will not be considered unless good cause is shown. Motions  
for publication must be based upon one or more of the criteria listed in      
subsection (a). Such motions are not favored and will be granted only for     
compelling reasons. U.S. Ct. App. D.C. Cir. R. 36.

  Federal Circuit

  Local Rule 47.6. Opinion and Order of the Court 
    (a) Disposition of Appeal, Motion, or Petition; Precedential Effect.      
Disposition of an appeal may be announced in an opinion; disposition of a     
motion or petition may be announced in an order. An appeal may also be        
disposed of in a judgment of affirmance without opinion pursuant to Federal   
Circuit Rule 36. A disposition may be cited as precedent of the court unless  
it is issued bearing a legend specifically stating that the disposition may   
not be cited as precedent.

  (b) Nonprecedential Opinion or Order. An opinion or order which is          
designated as not to be cited as precedent is one unanimously determined by   
the panel issuing it as not adding significantly to the body of law. Any      
opinion or order so designated must not be employed or cited as precedent.    
This rule does not preclude assertion of claim preclusion, issue preclusion,  
judicial estoppel, law of the case, or the like based on a decision of the    
court designated as nonprecedential.

  (c) Request to Make an Opinion or Order Precedential; Time for Filing.      
Within 60 days after any nonprecedential opinion or order is issued, any      
person may request, with accompanying reasons, that the opinion or order be   
reissued as precedential. An original and 6 copies of the request must be     
filed with the court. The request will be considered by the panel that        
rendered the disposition. The requestor must notify the court and the parties 
of any case that person knows to be pending that would be determined or       
affected by reissuance as precedential. Parties to pending cases who have a   
stake in the outcome of a decision to make precedential must be given an      
opportunity to respond. If the request is granted, the opinion or order may be
revised as appropriate.

  (d) Public Records. All dispositions by the court in any form will be in    
writing and are public records. U.S. Ct. App. Fed. Cir. R. 47.6.

[FNa1]. B.A., LL.B., Ph.D., University of Sydney; Professor of Law, American  
University Washington College of Law. I wish to thank Dean Claudio Grossman   
for the research support that enabled the writing of this Article; Library    
Director Billie Jo Kaufman, Senior Reference Librarian Susan Lewis-Somers and 
Foreign and International Law Librarian Bill Ryan; American University        
Washington College of Law students Rebecca Kennedy (J.D. 2003) (especially for
her work on compiling the first draft of the Appendix), Heather Collier, and  
Jarrett Perlow (J.D. 2004), and Grant Mogan and Andrew Stawar (J.D. 2005) for 
research assistance; former colleagues Desmond Manderson, Canada Research     
Chair in Law and Discourse Co-ordinates at McGill University School of Law,   
who suggested the phrase "inequitable injunctions" for the title, and Dr.     
Joseph Pugliese of the Department of Critical and Cultural Studies, Macquarie 
University, Australia, for his reading of "the scandal"; my colleagues Muneer 
Ahmad, Jonathan Baker, Susan Bennett, Pamela Bridgewater, Amy Dillard, Ian    
Gallacher, Christine Haight Farley, Mark Niles, Peter Jaszi, Teemu Ruskola,   
Brenda Smith, Janet Spragens, Robert Vaughn, and Leti Volpp, for helpful      
suggestions about various aspects of this Article; Professor Arthur Jacobson  
and Dr. Helen Stacy for encouragement at critical stages in the project;      
Professor Judith Resnik for thoughtful comments on an advanced draft; and, as 
always, David Caudill. This Article is dedicated to Bill Priestley, one of Her
Majesty's Counsel for the Australian state of New South Wales and formerly a  
Justice of the New South Wales Court of Appeal, and George Masterman, also one
of Her Majesty's Counsel for New South Wales, formerly New South Wales        
Ombudsman, for everything they taught me about ethical judging and about      
transparency and due process, respectively.

[FN1]. Jacques Derrida, Of Grammatology 147 (Gayatri Chakravorty Spivak       
trans., The Johns Hopkins Univ. Press 1st ed. 1976).

[FN2]. Id. at 149.

[FN3]. Despite the official Canadian position that Canadian courts do not     
practice "unpublication" of opinions on the U.S. model, a student who attended
the lecture I delivered in the Judicial Reflections lecture series, Annie     
Macdonald Langstaff Workshop in Feminist Theory, at McGill University School  
of Law in March 2003 and who had previously clerked for a Canadian judge told 
me that the opinions her judge set her to read each week often bore the       
imprint of a red stamp with words to the effect of "the judge believes this   
opinion should not be published."

[FN4]. Despite some commentators' use of the term "secret" judging to describe
unpublication, "private" seems a more apposite term. Private judging has also 
been used to describe a standard alternative dispute resolution technique and 
the California practice permitted by the California Rules of Court Rule 638,  
colloquially called "rent-a-judge," which allows parties to contract privately
with retired judges and then to have the reports rendered by these judges     
effectively adopted as court orders. See Cal. R. Ct. 638. First, while the    
practice of issuing opinions without any reasons might be described as        
involving secrecy, unpublished opinions may be remarkably revealing about what
motivated the court's decision, as the discussion in Part I.A.1, infra,       
suggests. Second, all three practices result in institutional litigants having
preferential access to this corpus of opinions and often in using this access 
to manipulate precedent in their favor; additionally, the evidence as to the  
material practices involved in courts' providing access to these opinions     
displays a remarkable lack of judicial concern about public access to what are
documents of public record. Finally, Judge Kozinski, one of the most vehement 
defenders of and apologists for unpublication, used the metaphor of private   
correspondence between court and litigants to describe unpublished opinions.  
See Hart v. Massanari, 266 F.3d 1155, 1178 (9th Cir. 2001) (describing "[a]n  
unpublished disposition [as], more or less, a letter from the court to parties
familiar with the facts, announcing the result and the essential rationale of 
the court's decision").

[FN5]. See Audiotape: What is "Authority" ?, Panel Presentation, held at the  
Association of American Law Schools (Jan. 3-6, 2001) (remarks of Judge        
Margaret McKeown, United States Court of Appeals for the Ninth Circuit) (on   
file with author) [hereinafter McKeown Presentation] (estimating that 79% of  
the opinions of the Federal Courts of Appeals are unpublished).

[FN6]. This was when the Judicial Conference, responding to a proposal by the 
Conference Board of the Federal Judicial Center, asked all the federal        
circuits to adopt publication plans, which were in fact unpublication plans.  
See Unpublished Judicial Opinions: Hearing Before the Subcomm. on Courts, the 
Internet & Intellectual Prop. of the House Comm. on the Judiciary, 107th Cong.
2, 20-26 (2002) [hereinafter Unpublished Judicial Opinions Hearing] (statement
of Kenneth J. Schmier, Chairman, Committee for the Rule of Law), and William  
R. Mills, The Shape of the Universe: The Impact of Unpublished Opinions on the
Process of Legal Research, 46 N.Y.L. Sch. L. Rev. 429 (2003), for slightly    
differing accounts of these developments.

[FN7]. While the United States Judicial Conference recommended in 1964--also  
the year of passage of the 1964 Civil Rights Act--that federal courts only    
publish opinions "'which are of general precedential value,"' Richard S.      
Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 219   
(1999) (quoting Dir. of the Admin. Office of the United States Courts,        
Judicial Conference Reports 1962-64, at 11 (1964)), not all courts followed   
that recommendation. Mills, supra note 6, at 431. However, as the discussion  
of Jones v. Superintendent, Virginia State Farm 465 F.2d 1091, 1091 (4th Cir. 
1972), infra Part I, suggests, the United States Court of Appeals for the     
Fourth Circuit made a formal decision to "unpublish" opinions stemming from   
pro se prisoner postconviction appeals as early as 1962. While West's         
corporate history frequently makes the claim that it published "all" the      
opinions in a particular region, there is some linguistic slippage at various 
points in the text that reveals "all" means "some." See William W. Marvin,    
West Publishing Co.: Origin Growth Leadership 34-39, 52, 62, 68, 69, 73, 80,  
121, 151, 152, 154 (West 1967).

[FN8]. See also Mills, supra note 6, at 440. 
  [I]n the decades preceding the age of digital information, the unpublished  
opinion was a phenomenon of only minor significance within legal research. By 
the end of the 19th century, the universe of published case law had become a  
well-defined and orderly system, embodied in the ... West Publishing Company's
National Reporter System. West's case reporters set a standard that was       
universally accepted. Virtually all published legal writing, irrespective of  
publisher, was geared to the West cites. Opinions falling outside this system 
were not only disfavored by courts and judges; they were also, as a practical 
matter, by and large inaccessible to researchers. The legal profession, aided 
and abetted by West, kept tight control of the shape of the research universe.
But, as soon as the computer entered the law library, the profession began to 
lose that control. 
  A lawyer who had access to West documents discovered during litigation and  
subsequently destroyed tells me that West had never published all U.S. court  
opinions, but rather only published those which its agents could persuade     
judges to release to them; there was some judicial reluctance to do so because
this would of course contribute to West's profits. A careful and skeptical    
reading of West's corporate history reveals that while it frequently claimed  
to publish "all" opinions in a given jurisdiction or region, "all" in fact    
meant "some." See supra note 6; see also Marvin, supra note 7, at 34-39, 52,  
62, 68, 69, 73, 80, 121, 151, 152, 154. There is a vigorous discourse on      
unpublication at least as early as the 1930s, see, for example, Francis P.    
Whitehair, Opinions of Courts: Fifth Circuit Acts Against Unneeded            
Publication, 33 A.B.A. J. 751 (1947) [hereinafter Whitehair I], which likewise
indicates that it was a longstanding phenomenon involving a range of material 
practices.

[FN9]. Judith Resnik has made this suggestion in relation to vacatur. See     
Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement,
and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L.
Rev. 1471, 1486 (1994).

[FN10]. See supra note 3.

[FN11]. This limitation occurred with the issuing of 7.1 and 7.2 of Practice  
Direction (Citation of Authorities) [2001] 1 W.L.R. 1001-1003 (also cited as  
Practice Note [2001] 2 All E.R. 510-512 (Lord Woolf, C.J.)) (providing that   
counsel must obtain the permission of the court to cite to unreported         
judgments and must establish that the unreported case establishes a new       
principle). Before 2001, there was a custom that "judges would talk privately 
to counsel if they felt irrelevant or unnecessary cases were being cited,"    
although that custom was "more observed in the breach before 2001." E-mails   
from Robert Logan, Deputy Librarian, Bodleian Law Library, Oxford University, 
to Penelope Pether, Professor, American University Washington College of Law  
(Aug. 7, 2003, 14:18:05 GMT Daylight Time and Aug. 4, 2003, 12:30:00 GMT      
Daylight Time) (on file with author). Logan notes, however, that the new rule 
"needs to be read in the context of the practice direction as a whole and     
Halsbury's Laws notes thatparagraph 4 of the same direction states that 'it   
remains the duty of advocates to draw the attention of the court to any       
authority not cited by an opponent which is adverse to the case being         
advanced."' Id. (quoting 37 Halsbury's Laws of England P 1252 (2001)).

[FN12]. Others include courts "actually rewrit[ing] ... decision[s] to conform
with litigants' wishes," Jill E. Fisch, Captive Courts: The Destruction of    
Judicial Decisions by Agreement of the Parties, 2 N.Y.U. Envtl. L.J. 191, 193 
(1993) [hereinafter Fisch, Captive Courts]; see also Resnik, supra note 9, at 
1521 & n.180; editing transcripts; and issuing decisions orally, K.K.         
DuVivier, Are Some Words Better Left Unpublished?: Precedent and the Role of  
Unpublished Decisions, 3 J. App. Prac. & Process 397, 400 n.10 (2001). The    
most frequent and arguably most egregious is writing extremely brief opinions,
which may be as short as one or two words, without stating reasons; one critic
labeled this practice "an imperious ukase without a nod to law or a need to   
justify." Paul D. Carrington, Justice on Appeal 31 (1976). See generally Mitu 
Gulati & C.M.A. McCauliff, On Not Making Law, 61 Law & Contemp. Probs. 157    
(1998), for an account of the "extensive use of without-comment disposition   
from 1989 to 1996," which in the Third Circuit ran as high as 60%. Id. at 158,
162. The practice of giving no reasons for the court's decision in a case is  
frequently combined with unpublication. Robel, and Schuchman and Gelfand have 
documented the Third and Fifth Circuits' attempts, since abandoned, to do away
with opinions completely. See Lauren Robel, The Practice of Precedent:        
Anastasoff, Noncitation Rules, and the Meaning of Precedent in an Interpretive
Community, 35 Ind. L. Rev. 399, 409 n.54 (2002) [hereinafter Robel, Practice];
Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and 
Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 
940, 943 n.15 (1989) [hereinafter Robel, Myth]; Philip Schuchman & Alan       
Gelfand, The Use of Local Rule 21 in the Fifth Circuit: Can Judges Select     
Cases of "No Precedential Value" ?, 29 Emory L.J. 195 (1980).

[FN13]. 347 U.S. 483 (1954) [hereinafter Brown I].

[FN14]. This was two years after Brown I held that segregated schools violated
the Constitution's equal protection guarantee, one year after Brown v. Board  
of Education, 349 U.S. 294, 301 (1955) [hereinafter Brown II] directed that   
the segregated school system should be dismantled with "all deliberate speed,"
and one year before the passage of the 1957 Civil Rights Act.

[FN15]. This was two years after the passage of the 1960 Civil Rights Act, and
a good two years before the official history of contemporary unpublication    
doctrine says it began.

[FN16]. Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges 
of the Fifth Circuit Who Translated the Supreme Court's Brown Decision into a 
Revolution for Equality 17 (1981).

[FN17]. Howard Slavitt has persuasively argued about these sacrifices of      
principled decisionmaking. See Howard Slavitt, Selling the Integrity of the   
System of Precedent: Selective Publication, Depublication, and Vacatur, 30    
Harv. C.R.-C.L. L. Rev. 109, 119-20 (1995).

[FN18]. Jill E. Fisch, The Vanishing Precedent: Eduardo Meets Vacatur, 70     
Notre Dame L. Rev. 325, 351 (1994) [hereinafter Fisch, Vanishing] (noting that
vacatur "is usually connected to other methods of hiding or erasing an        
opinion, such as depublication, withdrawal or expungement").

[FN19]. Slavitt, supra note 17, at 109.

[FN20]. While the trenchant tone of much criticism of the practices of private
judging suggests that many regard them as "scandalous" in the conventional    
sense, in labeling unpublication, depublication, and stipulated withdrawal of 
judicial opinions "scandalous," I am drawing on Derrida's usage of the term   
and on Joseph Pugliese's insight that "what remains... unspeakable in a text  
[are] those aporetic moments where [Derrida] discloses the scandalous         
dependency on the outlawed other that is simultaneously constitutive of a     
particular concept or thesis." E-mail from Dr. Joseph Pugliese, Department of 
Critical and Cultural Studies, Macquarie University, to Penelope Pether,      
Professor, American University Washington College of Law (Aug. 29, 2003,      
14:42:49 GMT Daylight Time) (on file with author). Unpublication's origin,    
discussed in Part I.A.1., infra, is the paradigm of the "scandal" of the      
practices of private judging institutionalized since the 1960s in the U.S.    
courts. Forced to abandon enforcement of Jim Crow laws, which were the        
successors of the legalized slavery constitutive of the nation, U.S. courts   
developed institutionalized practices that both produced and avoided the      
evidence of their structural subordination of "others." These practices       
manifest blindness and deafness to the "supplement"--the opinions that provide
evidence of that structural subordination--achieving this via the citation    
bans usually imposed on the products of private judging, and by denying the   
precedential status of the vast majority of U.S court opinions. While formally
outlawed by the Constitution and the Supreme Court, subordination of "others,"
then, remains constitutive of U.S. law.

[FN21]. Michael Hannon, A Closer Look at Unpublished Opinions in the United   
States Court of Appeals, 3 J. App. Prac. & Process 199, 200 (2001) (noting    
that the Fifth and Third Circuits were examining "the need to reduce the      
number of published opinions" in 1947). A search of Hannon's sources and      
others cited in them reveals both that unpublication was a fact of life in the
1940s and that lawyers, worried about the cost and space of libraries and     
about the time taken to do research, had been pressing for its increase since 
at least the 1930s. See, e.g., Clarence M. Hanson, Judicial Administration:   
The Avalanche of Appellate Court Opinions, 33 A.B.A. J. 426 (1947); Whitehair 
I, supra note 8; Francis P. Whitehair, Opinions of Courts: Should Number      
Published Be Reduced?, 34 A.B.A. J. 668 (1948) [hereinafter Whitehair II]. See
also Volumes 25 and 26 of the Journal of the American Judicature Society      
(1942) for a range of contributions on this issue. This material suggests that
at least as early as the 1930s lawyers were asking for an increase in         
unpublication and that courts (including the federal courts, which left "the  
matter... to the discretion of the judges and courts concerned"), Whitehair I,
supra note 8, at 755 (quoting correspondence from the Director of the         
Administrative Office of the United States Court), and legislatures, either   
officially or de facto, were obliging them.

[FN22]. Dir. of the Admin. Office of the United States Courts, Reports of the 
Proceedings of the Judicial Conference of the United States 14 (1964)

[FN23]. Id.

[FN24]. Id. There is an elaborated discourse on "precedential value" in the   
1940s record cited supra notes 8, 21.

[FN25]. See Donald R. Songer, Criteria for Publication of Opinions in the U.S.
Courts of Appeals: Formal Rules Versus Empirical Reality, 73 Judicature 307,  
308 (1990). Of the three circuits studied by Howard, which did not include the
Fourth, only the D.C. Circuit had a significant number of unpublished         
decisions in the 1965-1967 period (the other two studied were the Second and  
Fifth Circuits). J. Woodford Howard, Courts of Appeals in the Federal Judicial
System: A Study of the Second, Fifth, and District of Columbia Circuits       
(1981).

[FN26]. In 1964 a recommendation was made by the Federal Judicial Conference  
of the United States that courts limit publication based on precedential      
value. In 1972 the Conference ordered that the circuits adopt publication     
plans. See, e.g., Arnold, supra note 7; Robel, Myth, supra note 12; Songer,   
supra note 25, at 308 (giving a detailed chronology of the process);          
Unpublished Judicial Opinion Hearings, supra note 6, at 21. 
  Hannon claims that "[p]rior to [1976], all or very nearly all federal       
appellate court opinions in the United States were published in print."       
Hannon, supra note 21, at 201. His authority for that claim is problematic.   
First, he cites as authority Songer, supra note 25, at 308, who, in the       
passage cited makes it clear that nobody knows how many Court of Appeals      
decisions were unpublished before 1964, speculating that "the number was      
relatively small." Songer cites no authority for his speculation, but notes, 
  At present, no systematic studies exist which even permit us to reliably    
estimate how many decisions were unpublished in each of the years since 1964. 
Fragmentary evidence suggests that the number of unpublished opinions began to
escalate sharply ... in the mid 1970s and that it... leveled off sharply in   
the 1980s. 
  Songer, supra note 25, at 308. Hannon's own research into numbers is        
methodologically flawed if it's designed to indicate how many opinions were   
unpublished before 1964, because he relied on West and LEXIS databases rather 
than documents. His failure to find cases never delivered to West but likely  
locatable in the federal archives, as was Knight v. Coiner, No. 14,940 (4th   
Cir. Feb. 11, 1971), discussed infra Part I.A.1, is a matter of methodology.  
It will take archival research in the circuits, state court archives, and the 
federal archives to determine how many there are in existence, assuming those 
archives are complete. It appears from the sources cited, supra notes 7-8,    
that an unquantifiable number of opinions were never given to West. Thus,     
while there is some evidence of a sharp increase in the 1970s (to the current 
rate of around 80% of federal appellate decisions nationally), this may have  
been from a substantial (and is certainly from a presently unquantifiable)    
base.

[FN27]. See Robel, Practice, supra note 12, at 402.

[FN28]. See, e.g., id. at 402 (noting that "[w]hen the rules were first       
suggested to the Judicial Conference of the United States Courts in 1964, the 
rationale was the prosaic one of dealing with 'the ever increasing practical  
difficulty and economic cost of establishing and maintaining accessible       
private and public law library facilities"'). It is worth noting that any     
discussion of common law precedent in the context of the U.S. federal courts  
needs to be alert to the complications that subject matter jurisdiction, for  
example, introduces into the topic. See Hart v. Massanari, 266 F.3d 1155, 1163
n.7 (9th Cir. 2001), for a general discussion of those complications.

[FN29]. Robel, Practice, supra note 12, at 403 (quoting Comm'n on the Revision
of the Fed. Court Appellate Sys., Structure and Internal Procedures:          
Recommendations for Change--A Preliminary Report 72 (1975)).

[FN30]. See McKeown Presentation, supra note 5 (noting that, while the Minutes
of the Judicial Conference in 1964 gave as its reason for recommending the    
euphemistically titled "publication plans," "the number of published cases and
the effect on maintaining an accessible law library," and by concerns about   
fairness and equal access to libraries, it "has also been reported that one of
the big issues... was volume; that there were [an] increasing number of civil 
rights cases back in the 60s, [an] increasing number of pro se prisoner cases,
and there was some concern that basically the Federal Courts were going to    
drown under this increasing volume and that was the real reason that many of  
these were going to be shunted aside to unpublished opinions").

[FN31]. Id.

[FN32]. There is documentary evidence that suggests that agitation from       
lawyers for increased unpublication in the 1930s and 1940s, based on differing
kinds of costs--time, purchase price of reporters, and storage space--produced
some attempts to consider how to systematically reduce opinions in the Fifth  
and Third Circuits in the 1940s. See supra notes 8 & 21. Judge Hanson both    
expressed a generalized judicial desire for both fewer and shorter opinions,  
potentially including opinions without reasons, in 1947. See Hanson, supra    
note 21. The significance of Jones to the interpretation of this history,     
which I suspect is an old(er) one, is that Judge Haynsworth specifically dates
the volume problem as beginning between 1956-1957 and 1962, and ascribes it to
postconviction appeals.

[FN33]. See McKeown Presentation, supra note 5.

[FN34]. 465 F.2d 1091 (4th Cir. 1972) [hereinafter Jones No. 2]. To the extent
that Jones is mentioned at all in the literature on the practices of private  
judging is relegated to footnotes. See, e.g., Salem M. Katsh & Alex V.        
Chachkes, Constitutionality of "No-Citation Rules", 3 J. App. Prac. & Process 
287, 295 n.30 (2001). In the literature on prisoners' rights it is,           
paradoxically, portrayed as an opinion of liberal hue. See, e.g., 3 Joseph G. 
Cook, Constitutional Rights of the Accused <section> 24:5 (3d ed. 2003).

[FN35]. See Jones No. 2, at 1093, 1096.

[FN36]. See id. at 1093-94.

[FN37]. See id. at 1094.

[FN38]. Jones v. Superintendent, Va. State Farm, 460 F.2d 150, 152 (4th Cir.  
1972) [hereinafter Jones No. 1].

[FN39]. Jones No. 2, 465 F.2d at 1092.

[FN40]. Jones No. 1, 460 F.2d at 150.

[FN41]. Id. at 152.

[FN42]. No. 14,940 (4th Cir. Feb. 11, 1971).

[FN43]. Jones No. 2, 465 F.2d at 1092.

[FN44]. Id.

[FN45]. See id. at 1094. Note that while Jones No. 2 was authored by Judge    
Craven, it quotes heavily from the Haynsworth Report, and Chief Judge         
Haynsworth was a member of the three-judge panel deciding the case.

[FN46]. Id. at 1094-95.

[FN47]. Id. at 1093-94.

[FN48]. Id. at 1094-96.

[FN49]. Id. at 1093, 1095.

[FN50]. Peter Goodrich, Europe in America: Grammatology, Legal Studies, and   
the Politics of Transmission, 101 Colum. L. Rev. 2003, 2036 (2001)            
(interpreting Derrida and noting that "[g]rammatology, the study of writing   
systems and the laws of inscription, suggests that we pay particular attention
to origins, to initial encounters, to what was historically the first cut").

[FN51]. 351 U.S. 12 (1956).

[FN52]. 372 U.S. 335 (1963).

[FN53]. Douglas v. California, 372 U.S. 353 (1963).

[FN54]. Cooper v. Pate, 378 U.S. 546 (1964); see also Bounds v. Smith, 430    
U.S. 817 (1977) (appealing the Fourth Circuit opinion constitutionally        
obliging states to provide prisoners with adequate legal research materials or
assistance from legally trained persons to enable them to prepare and file    
meaningful legal papers, specifically including those involved in habeas      
corpus and civil rights actions).

[FN55]. Johnson v. Avery, 393 U.S. 483 (1969).

[FN56]. Wolff v. McDonnell, 418 U.S. 817 (1974).

[FN57]. Mayer v. Chicago, 404 U.S. 189 (1971).

[FN58]. See Ross v. Moffitt, 417 U.S. 600 (1974) (appealing from a Fourth     
Circuit decision limiting the requirements of access to both counsel and      
transcript to the first "as of right" appeal). Ross came a year after         
Rodriguez v. San Antonio Indep. Sch. Dist. 441 U.S. 1 (1973), where the Court 
reversed a Fifth Circuit decision holding the Texas school financing model    
unconstitutionally discriminatory.

[FN59]. See Washington v. Davis, 426 U.S. 229 (1976) (upholding the use of a  
test of verbal ability, vocabulary, reading, and comprehension in appointing  
D.C. police officers as nondiscriminatory, even though there was no evidence  
of its relevance to job performance and even though African Americans failed  
it four times as frequently as whites).

[FN60]. See, e.g., Griffin v. Bd. of Supervisors of Prince Edward County, 322 
F.2d 332 (4th Cir. 1963), rev'd, 377 U.S. 218 (1964) (responding to the       
county's attempt to evade a district court desegregation order via protracted 
litigation and ceasing to levy taxes or appropriate funds to run county public
schools and then closing them, while at the same time paying tuition grants   
and providing tax credits to support a system of "whites only" schools        
"funded" by a private foundation; in a decision written by Judge Haynsworth,  
the court further protracted litigation, reversing a district court injunction
prohibiting the payment of tax credits and tuition grants as long as the      
public schools stayed closed).

[FN61]. See Bass, supra note 16, at 125-35, 221-30 (recording that the        
"unlikely heroes" of the Fifth Circuit Court of Appeals supported District    
Judge Skelly Wright in desegregating the New Orleans schools in the face of an
attempt to close the schools to circumvent Brown, acting with even greater    
resolve in the St. Helena parish desegregation case, in resolving the         
Birmingham schools "crisis," and in desegregating schools in Savannah and     
Mobile).

[FN62]. It also demonstrates that, contrary to claims that the Fifth Circuit  
inaugurated screening to the nonargument track, the Fourth Circuit developed  
screening processes well before the Fifth Circuit did.

[FN63]. 955 F.2d 36 (10th Cir. 1992) [hereinafter Rules of Tenth Circuit].

[FN64]. A former Justice Department lawyer who heard a presentation based on  
an earlier version of this Article suggested that I leave "the discussion     
about stipulated withdrawals for another paper." The reason was that while    
this lawyer was in the Justice Department's Civil Rights Division, she        
"negotiated a couple of stipulated withdrawals to get rid of bad district     
court decisions that set bad precedent for civil rights plaintiffs." Even for 
those liberals idealistic about the work of the Civil Rights Division, given  
current events, trusting the Justice Department with civil rights may not seem
appealing. More than this, however, the remark missed the point that the      
Justice Department is precisely the kind of institutional litigant who is     
systematically advantaged by the practices of private judging. Many others are
not so capable of rosy representation by those liberals inclined to do so in  
this case; the I.N.S. (and its successor agency) is just one example.

[FN65]. Prisoner-litigants are a group that still troubles the bench, as      
revealed by a discussion I had on a social occasion in 2002 with a state judge
who sought vigorously to defend the practice of institutionalized             
unpublication, in significant part because of the waste of court time and     
resources caused by what she perceived as meritless pro se prisoner litigation
and with an experienced attorney who was equally as condemnatory of           
unpublication.

[FN66]. Jones v. Superintendent, Va. State Farm, 465 F.2d 1091, 1092 (4th Cir.
1972).

[FN67]. Id.

[FN68]. Id. at 1093.

[FN69]. Id. There are of course entirely credible reasons why an attorney     
might want to withhold a transcript from a client, such as if fees had not    
been paid or there had been disputes between attorney and client about fees or
about the quality of representation. It appears from the appeal papers that at
the time of his application for a certificate of probable cause his counsel of
record was a lawyer in the Clarksburg office of Steptoe & Johnson. Letter from
the Clerk, United States District Court for the Northern District of West     
Virginia, to the Clerk, United States Court of Appeals for the Fourth Circuit,
Aug. 4, 1970, in Knight v. Coiner, No. 69-110-E (4th Cir. Feb. 11, 1971). It  
is not clear whether this was the lawyer who had refused to provide him with  
trial transcript.

[FN70]. A Washington College of Law librarian contacted the Fourth Circuit    
library in Richmond, Virginia and was told that the case was not kept in the  
library. On Sept. 19, 2002, Ellen Belton in the Fourth Circuit Clerk's office 
stated that the library did not have the case and did not know where it was   
sent. The case was eventually located in the National Archives site in        
Philadelphia, the archive location for Fourth Circuit records, and a copy was 
obtained for a fee of $10.00.

[FN71]. Jones No. 2, 465 F.2d at 1092, 1093. Knight was an appeal from the    
United States District Court for the Northern District of West Virginia.

[FN72]. 396 U.S. 282, 286 (1970).

[FN73]. Jones No. 2, 465 F.2d at 1093.

[FN74]. Id. (quoting Wade v. Wilson, 396 U.S. at 286).

[FN75]. Id. (emphasis added).

[FN76]. Id. at 1092.

[FN77]. Id. at 1093 (emphasis added).

[FN78]. Wade, 396 U.S. at 286.

[FN79]. Jones No. 2, 465 F.2d at 1092.

[FN80]. Id.

[FN81]. Id. at 282.

[FN82]. The weary cynicism nurtured by the research for this Article moves me 
to note that an opinion favoring a litigant from a disempowered group was     
unpublished and that the appeal that reached a diametrically opposite         
conclusion was memorialized in a published opinion, Wilson v. Wade, 390 F.2d  
632 (9th. Cir. 1968).

[FN83]. Wade, 396 U.S. at 284.

[FN84]. Wade, 390 F.2d at 634.

[FN85]. Wade, 396 U.S. at 286.

[FN86]. Id.

[FN87]. Id. at 287.

[FN88]. Id. at 287-88.

[FN89]. Id. at 288.

[FN90]. Id.

[FN91]. Knight v. Coiner, No. 14,940, at 1 (4th Cir. Feb. 11, 1971).

[FN92]. Id. at 3-4.

[FN93]. Id. at 3.

[FN94]. No. 14,244, Mem. Dec. (4th Cir. May 5, 1970). The opinion has in fact 
proved unprocurable. See E-mail from Rebecca Kennedy to Penelope Pether,      
Professor, American University Washington College of Law (Jan. 14, 2004,      
11:53:39 EST) (on file with author) (noting that "I ... first contacted the   
clerk of the 4th circuit. I was told that there would be no case with that    
docket number. I verified the docket number and called back, again receiving  
the same response. I then called the 4th circuit library and was told that it 
would probably be with the National Archives. I contacted the National        
Archives in Philadelphia. They said that they needed the box number and other 
information in order to locate a case. I attempted to get that information    
from the 4th circuit, but was unable to. I contacted the National Archives    
again, though, because I did get the first case [i.e., Knight] without the    
additional information (they still located it without it). But, I was         
unsuccessful.").

[FN95]. 460 F.2d 150, 153 (4th Cir. 1972) (reversing trial court decision     
ordering the state to produce transcript while noting that "the expense and   
inconvenience to the state in supplying a transcript for the prisoner would   
have been minimal" in this case; that the "right to a transcript when needed  
to collaterally attack a conviction ... is absolute, irrespective of expense  
or inconvenience to the state. Conversely, if no need is shown, there is no   
constitutional right to a transcript, regardless of how easily and            
inexpensively the state could furnish it").

[FN96]. 317 F.2d 200, 202 (4th Cir. 1963).

[FN97]. Jones No. 1, 460 F.2d at 152.

[FN98]. Id. at 153.

[FN99]. Id. at 153 n.4.

[FN100]. Id.

[FN101]. It does so via its citation to Lane v. Brown, 372 U.S. 477  (1963);  
United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964); and United States v.    
Glass, 317 F.2d 200 (4th Cir. 1963).

[FN102]. See, for example, Jones No. 1's selective citation to dicta in       
United States v. Glass, 317 F.2d 200 (4th Cir. 1963) (finding in favor of an  
indigent pro se prisoner litigant and in turn citing to dicta in Draper v.    
Washington, 372 U.S. 487 (1963) (providing that the Fourteenth Amendment does 
not require provision of transcript per se to indigent prisoners if other     
documents are adequate substitutes)), and to United States v. Hoskins, 85 F.  
Supp. 313 (E.D. Ky. 1949) (holding, based narrowly on statutory               
interpretation, that a prisoner was not entitled to free transcript unless he 
had filed a habeas action), in order to ground its novel doctrine that        
indigent prisoners were not entitled to transcript for the purposes of        
postconviction appeals without proving a need for that transcript. See also   
United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964) (also cited by Jones No. 
1 to ground its decision to deny indigent prisoners a right to transcript at  
state expense) (finding in Hardy v. United States, 375 U.S. 277 (1964), a case
holding on statutory grounds that it will often be necessary for newly        
appointed appellate counsel in criminal cases to obtain trial transcript,     
authority for its novel doctrine that trial transcript was not a right of     
indigent prisoners absent a showing of need). Compare the uses made of largely
identical Supreme Court precedent by the Fourth Circuit in Shoaf, 341 F.2d at 
834 (relegating to a footnote cases that extend the protection offered by the 
Supreme Court's jurisprudence on access by indigent prisoner appellants to    
transcript, and selectively or unjustifiably mining precedent for fragments in
dissents and scraps of dicta for support of the claim that "[i]n Griffin,     
itself, and in the subsequent cases in the Supreme Court extending its        
principle, it is either implicit or explicit in the opinions of the Court that
the right to a transcript at government expense arises only in response to    
need of it"), with those made by the United States Supreme Court in Lane v.   
Brown, 372 U.S. 477 (1963) (emphasizing the Court's consistent holding that   
state procedures "substantially ... deny[ing] indigent defendants the benefits
of an existing system of appellate review" are unconstitutional, and that     
Smith v. Bennett extended this jurisprudence "to state post-conviction        
proceedings").

[FN103]. Jones No. 2, 465 F.2d at 1093.

[FN104]. Id.

[FN105]. It is worth noting in passing that "chance" is a disingenuous way to 
categorize a material practice over which the court itself has complete       
control.

[FN106]. Jones No. 2, 465 F.2d at 1093.

[FN107]. Id.

[FN108]. A contradiction that three judges on the Tenth Circuit also          
registered as early as 1986. See supra text accompanying note 63.

[FN109]. Jones No. 2, 465 F.2d at 1094.

[FN110]. Id.

[FN111]. Id.

[FN112]. Id.

[FN113]. Id.

[FN114]. Id.

[FN115]. Id.

[FN116]. Id. at 1095.

[FN117]. Id. at 1094-95.

[FN118]. Id. at 1095.

[FN119]. This is in addition to the other designations used by district courts
and magistrate judges--who handle most of the "frivolous" litigious traffic   
from pro se prisoner postconviction and civil rights litigants and other      
groups disfavored by the courts--to dispose of this litigation.

[FN120]. Jones No. 2, 465 F.2d at 1095.

[FN121]. Id.

[FN122]. Id.

[FN123]. Id. at 1095-96.

[FN124]. Id.

[FN125]. Id. at 1095.

[FN126]. Id.

[FN127]. Id.

[FN128]. Id. at 1094.

[FN129]. Id.

[FN130]. Id. at 1095.

[FN131]. Id. at 1096.

[FN132]. Joe S. Cecil & Donna Stienstra, Deciding Cases Without Argument: An  
Examination of Four Courts of Appeals, 1987 WL 123661 (F.J.C. 1985) (Westlaw  
does not paginate this Report and so page references will be to the printout  
on file with the author) 33-34 [hereinafter Cecil 1987] (documenting Fifth    
Circuit staff attorney dissatisfaction with dealing with a largely pro se     
caseload).

[FN133]. 4th Cir. R. 46(f). See also Judith A. McKenna, Laural L. Hooper &    
Mary Clark, Case Management Procedures in the Federal Courts of Appeals       
(2000); Donald P. Ubell, Report on Cent. Staff Attorneys' Office in the U.S.  
Courts of Appeals, 87 F.R.D. 253 (1980), for accounts of the national         
institutionalization of these practices that afford a "second class" track to 
pro se prisoner appeals. In the latter, Ubell notes that in the Fourth        
Circuit, "[a]lthough the staff attorney is directed to search for possibly    
meritorious issues, he is not an advocate for the pro se litigant. He analyzes
issues in a judicially-neutral manner."  Id. at 278.

[FN134]. 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054  (8th   
Cir. 2000).

[FN135]. 266 F.3d 1155 (9th Cir. 2001).

[FN136]. 429 U.S. 917 (1976).

[FN137]. 434 U.S. 257, 258 (1978).

[FN138]. See McKeown Presentation, supra note 5 (noting that while the Minutes
of the Judicial Conference in 1964 gave as its reason for recommending the    
euphemistically titled "publication plans" "the number of published cases and 
the effect on maintaining an accessible law library" and concerns about       
fairness and equal access to libraries, it "has also been reported that one of
the issues... was volume; that there were [an] increasing number of civil     
rights cases back in the 60s, [an] increasing number of pro se prisoner cases,
and there was some concern that basically the Federal Courts were going to    
drown under this increasing volume and that was the real reason that some of  
these were going to be shunted aside to unpublished opinions").

[FN139]. She estimated that 79% of the opinions of the Federal Courts of      
Appeals are unpublished; about 7% of the total of all opinions are one-word   
opinions, called by lawyers "AWOP" (i.e., A One Word Opinion), and consisting 
of the word "affirmed" or "reversed" without reasons; the unpublication       
percentage stretches from 90% (in the Fourth Circuit) to the rates of the     
First, Second, and Seventh Circuits, which are in the 50th percentile range;  
and most circuits designate in the 80th percentile range their opinions "not  
for publication." See id. This is confirmed by statistics issued by the       
Administrative Office of the United States Courts, cited in Hannon, supra note
21, that the national totals have been rising steadily, and in the period     
1990- 2000 grew from 68.4% to 79.8%.

[FN140]. 3 J. App. Prac. & Process 1 (2001).

[FN141]. Posting of unpublished opinions on court websites, even if it were   
uniform across the circuits and complete for each circuit, neither of which is
the case, does not provide meaningful searchability of such opinions;         
meaningful searchability occurs when they are published on LEXIS and Westlaw  
on databases that provide digest and/or key number and/or Boolean and/or      
natural language searching. See Mills, supra note 6, for a detailed account of
the inadequacies of current availability and searchability for unpublished    
opinions. Federal legislation requiring federal courts to provide "[a]ccess to
the substance of all written opinions ... regardless of whether such opinions 
are to be published in the official reporter, in a text searchable format," 44
U.S.C. <section> 3501 Sec. 205(a)(5), will come into force later this year.   
See E-Government Act of 2002, Pub. L. No. 107-347 (codified at 44 U.S.C.      
<section>3501 Sec. 205(f)) (providing that Dec. 17, 2002 is the effective date
of the legislation) and 44 U.S.C. <section>3501 Sec. 205(C)(f) (providing that
"Not later than 2 years after the effective date of this title, the websites  
under subsection (a) shall be established ...."). However, the legislation    
explicitly enables jurisdictions to defer implementation of this requirement  
indefinitely, 44 U.S.C. <section>3501 Sec. 205(g). Further, the judiciary is  
still considering what "text searchable" means. Telephone Interview with James
Ishida, Administrative Office of the United States Courts (Apr. 15, 2004).    
Professor Schiltz likewise indicated that "no one is exactly sure" what "text 
searchable" will mean in practice. Telephone Interview with Professor Patrick 
Schiltz, Reporter, Advisory Committee on Appellate Rules, Judicial Conference 
of the United States (Apr. 15, 2004).

[FN142]. Stephen R. Barnett, From Anastasoff to Hart to West's Federal        
Appendix: The Ground Shifts Under No-Citation Rules, 4 J. App. Prac. & Process
1, 26 nn.4 & 5 (2002) [hereinafter Barnett, Anastasoff to Hart].

[FN143]. Id. at 26 n.6.

[FN144]. Despite the claims made by Barnett that the advent of the Federal    
Appendix "drains the meaning from the term 'unpublished,"'--a claim difficult 
to justify given that he acknowledges that the Fifth and Eleventh Circuits do 
not release unpublished opinions to West for publication in the Federal       
Appendix, see Barnett, Anastasoff to Hart, supra note 142, at 2--and by Judge 
Alito that "the overwhelming majority of opinions are now readily available to
the public, often at minimal or no cost because they are posted on court      
websites and are now printed in a new series of casebooks called the Federal  
Appendix that is available in most law libraries," Unpublished Judicial       
Opinion Hearing, supra note 6, at 20; Mills, supra note 6, at 445, reports in 
his private communication with West in March 2002 that the Third, Fifth, and  
Eleventh Circuits had never released any unpublished opinions to West "or to  
anyone else," although theoretically the Third Circuit's unpublished opinions 
should have been available to West as of January 2002. See Barnett, Anastasoff
to Hart, supra note 142, at 26 n.12. Hannon claims that "a very large number  
of unpublished opinions from [the Third, Fifth and Eleventh Circuits]... are  
in fact recorded on Westlaw," Hannon, supra note 21, at 211 (a claim cited by 
one of the few critics of unpublication, Dean Robel, to support the claim that
"now, with few exceptions, unpublished opinions are generally available in the
searchable electronic databases," Robel, Practice, supra note 12, at 408),    
however, what follows this quotation from Hannon, which Dean Robel evidently  
overlooked, was his acknowledgement that the "vast majority of them do not    
contain opinion text," Hannon, supra note 21, at 211 (emphasis added). See    
also William T. Hangley, Opinions Hidden, Citations Forbidden: Report &       
Recommendations of the American College of Trial Lawyers on the Publication & 
Citation of Nonbinding Federal Circuit Court Opinions, 208 F.R.D. 645, 652-54 
(2002), for an account of which circuits do not release unpublished opinions  
to LEXIS and Westlaw and of limitations on access to opinions "released" to   
the online publishing duopoly.

[FN145]. Mills, supra note 6, at 444. West also edits judges' opinions and    
claims copyrights in the Federal Supplement and Federal Rules Decisions, the  
appropriateness of which is a question for another day. Suffice it to say for 
now that allowing commercial entities to change the public record in any      
respect is just one of the many troubling aspects of the courts' relationships
with West and LEXIS.

[FN146]. Mills, supra note 6, at 438 n.41.

[FN147]. Id. at 442.

[FN148]. Id.

[FN149]. Id. at 441.

[FN150]. Hangley, supra note 144, at 651 n.17.

[FN151]. Mills, supra note 6, at 441.

[FN152]. Id.

[FN153]. These academic libraries are probably the only libraries currently   
with the economic resources to purchase and house the paper Shepards.

[FN154]. See Lynn Foster & Bruce Kennedy,The Evolution of Research:           
Technological Developments in Legal Research, 2 J. App. Prac. & Process 275,  
299 (2000) (noting that "[p]rint reporters, digests, and citators are doomed. 
It is cheaper to publish electronically than in paper form.... States that    
publish official reporters in paper form will cease to do so. West will       
eventually stop publishing printed reporters and digests. CD-ROM disks will   
also die out, but not as fast.").

[FN155]. See, e.g., Arnold, supra note 7, at 220, 225.

[FN156]. See, e.g., DuVivier, supra note 12, at 401.

[FN157]. While there are other electronic databases for legal research, the   
most significant of which are the (for now) free Findlaw (recently bought by  
West), Versuslaw, and Loislaw, none has anything near the breadth of coverage 
offered by LEXIS or Westlaw.

[FN158]. See Fisch, Vanishing, supra note 18, at 351-52; cf. Resnik, supra    
note 9, at 1498-99, 1499 n.100.

[FN159]. Mills, supra note 6, at 436.

[FN160]. The Third Circuit decided to post its opinions online effective      
January 2, 2002.

[FN161]. Effective January 1, 2002, the D.C. Circuit revoked its no-citation  
rule for unpublished opinions.

[FN162]. During the life of the 107th Congress, the Subcommittee began        
"oversight" hearings on Unpublished Judicial Opinions.

[FN163]. In April 2002, the Advisory Committee on Appellate Rules "went on    
record as favoring," see Hangley, supra note 144, at 663, a narrow amendment  
to the Federal Rules of Appellate Procedure allowing for citation by lawyers  
to unpublished opinions "only if: (1) it directly affects a related case,     
e.g., by supporting a claim of res judicata or collateral estoppel, or (2) 'a 
party believes that it persuasively addresses a material issue."' Unpublished 
Judicial Opinions: Hearing Before the Subcomm. on the Courts, the Internet,   
and Intellectual Prop. of the House Comm. on the Judiciary, 107th Cong. 9     
(2002) (statement of Judge Samuel A. Alito, Jr., United States Court of       
Appeals for the Third Circuit) [hereinafter Alito Testimony].

[FN164]. Effective January 1, 2003, the Texas Supreme Court ended the practice
of designating opinions of appellate courts in civil cases "not for           
publication." See Mary Alice Robbins, High Courts Split on "Do Not Publish"   
Designation, Tex. Law., Aug. 12, 2002 (on file with author).

[FN165]. The California Court of Appeal has recently begun posting its        
unpublished opinions on its website.

[FN166]. Jason Hoppin, Proposed Rule Would Allow Citation of Unpublished      
Opinions, The Recorder, Nov. 19, 2002.

[FN167]. David R. Fine, Precedents Lite: Hitting Right Note on Cites, Nat'l   
L.J., May 12, 2003, at 334.

[FN168]. Memorandum from Judge Samuel A. Alito, Jr., Chair, Advisory Committee
on Appellate Rules, to Judge Anthony J. Scririca, Chair, Standing Committee on
Rules of Practice and Procedure, Judicial Conference of the United States     
28-29 (May 22, 2003) (on file with author).

[FN169]. Id. at 1.

[FN170]. Public Announcement by Judge Anthony J. Scririca, Chair, Standing    
Committee on Rules of Practice and Procedure, Judicial Conference of the      
United States (Aug. 15, 2003) (on file with author). In fact, the hearings    
were either cancelled, "due to lack of interest," E-mail from Grant Mogan to  
Penelope Pether, Professor, American University Washington College of Law     
(Feb. 6, 2004, 10:29:52 GMT Daylight Time) (on file with author), and         
reinstated after a letter writing campaign apparently instigated by Judge     
Kozinski, Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004, at 11
(quoting Judge A. Wallace Tashima), or "more transferred [rather] than        
cancelled," Telephone Interview with Professor Patrick Schiltz, supra note    
141. In any event, hearings were held in Washington, D.C. on April 13, 2004.  
Mauro, supra, at 1. On April 14, 2004, the Advisory Committee voted 7-2 to    
recommend the rule change to the Full Rules Committee of the Judicial         
Conference. See Tony Mauro, Green Light to Cite Unpublished Opinions, Legal   
Times, Apr. 19, 2004, at 8.

[FN171]. Hoppin, supra note 166.

[FN172]. Stephanie Francis Cahill, Don't Issue Citations for Citations-Court  
Committee: Courts Should Allow Citing Unpublished Opinions, A.B.A. J. Rep.,   
Dec. 13, 2002.

[FN173]. Hoppin, supra note 166.

[FN174]. Id.

[FN175]. Cahill, supra note 172.

[FN176]. Alito Testimony, supra note 163, at 6.

[FN177]. Id.

[FN178]. See Hannon, supra note 21, at 202 tbl.1.

[FN179]. See Hart v. Massanari, 266 F.3d 1155, 1163 n.7 (9th Cir. 2001)       
(claiming that only Connecticut, Delaware, New York, and North Dakota do not  
have rules "limiting the precedential effect of unpublished decisions"). But  
see Appendix, infra (showing that Connecticut, New York, and North Dakota have
unpublished opinions, that Delaware has "summary opinions," and that citation 
by the courts to unpublished opinions is forbidden in North Dakota).

[FN180]. DuVivier, supra note 12, at 401; see id. at 400 & n.10 (noting that  
in Colorado, "almost none" of the decisions on the merits issued in a state   
district court that had almost 160,000 filings in 2000 are published); see    
also Paul Marcotte, Unpublished but Influential, A.B.A. J. Jan. 1991, at 26,  
28 (quoting Charles Herring, Jr., of Jones, Day, Reavis & Pogue to the effect 
that in Texas in 1991, for example, "72 percent of the state's appellate court
decisions [were] unpublished").

[FN181]. DuVivier, supra note 12, at 400.

[FN182]. Id. at 400 n.8 (citing Interview with Steve Ehrlich, Deputy Clerk of 
the U.S. District Court for the District of Colorado (Nov. 1, 2000)). A       
significant amount of the work of federal trial judges will not, of course,   
involve the kind of decisions that might normally be memorialized in opinions.
While the lineaments of the U.S. precedent system, which hold that the        
opinions of federal district judges are not precedential, are a topic for     
another day, suffice it to say that categorically denying precedential status 
to decisions of any court of record will have an effect on the consistency    
with which litigants are treated, the predictability of the application of    
legal rules, and the ways in which doctrine is developed in response to the   
demands of the community. Given the cost of litigation, the error-correcting  
function of the appellate courts does not do away with any of these problems.

[FN183]. Marcotte, supra note 180, at 28.

[FN184]. Songer, supra note 25, at 308.

[FN185]. See, e.g., Marcotte, supra note 180, at 26; Songer, supra note 25, at
308-09.

[FN186]. See Danny J. Boggs & Brian P. Brooks, Unpublished Opinions & the     
Nature of Precedent, 4 Green Bag 17, 20 (2000) (suggesting indirectly that    
there is a logical conflict between the efficiency and precedential status    
justifications for contemporary instituionalized unpublication).

[FN187]. See Hangley, supra note 144, at 650-52 (providing an account of the  
varying practices in the federal courts of appeals).

[FN188]. DuVivier, supra note 12, at 401 n.14 (citing Interview with Danea    
Weidemann, Academic Account Manager, West Group (Oct. 30, 2000)).

[FN189]. Marcotte, supra note 180, at 28.

[FN190]. DuVivier, supra note 12, at 400 n.8.

[FN191]. Hangley, supra note 144, at 660 n.45.

[FN192]. Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What  
Predicts Publication in the United States Courts of Appeals, 54 Vand. L. Rev. 
71, 88 (2001).

[FN193]. See, e.g., DuVivier, supra note 12, at 411-13 (describing the bulky  
and time-consuming procedure of selecting opinions for publication status     
under Colorado Appellate Rule 35(f)).

[FN194]. See, e.g., Donna Stienstra, Unpublished Dispositions: Problems of    
Access and Use in the Courts of Appeals, Fed. Jud. Center, 1985, at 11-12,    
available at 1985 WL 7156 (Westlaw does not paginate this Report and so page  
references will be to the printout on file with the author).

[FN195]. Different commentators categorize the "tiers" of citation bans       
differently; for example, Hangley and DuVivier categorize the Ninth Circuit as
having a "complete ban" jurisdiction.

[FN196]. For example, complete bans exist in the First, Second, Seventh, and  
Federal Circuits. Complete citation bans also exist for unpublished Fifth     
Circuit cases after 1995. Some state courts also prohibit the citation of     
unpublished decisions. See, e.g., DuVivier, supra note 12, at 403-04; Hangley,
supra note 144, at 659 n.43.

[FN197]. Intermediate bans exist in the Fourth, Fifth, Sixth, Eighth, Ninth,  
Tenth, and Eleventh Circuits.

[FN198]. Daniel Purcell, The Public Right to Precedent: A Theory and Rejection
of Vacatur, 85 Cal. L. Rev. 867, 871 (1997).

[FN199]. See, e.g., id.

[FN200]. 340 U.S. 36 (1950) (opining that "[t]he established practice of the  
Court in dealing with a civil case from a court in the federal system which   
has become moot while on its way here or pending our decision on the merits is
to reverse or vacate the judgment below and remand with a direction to        
dismiss," 340 U.S. at 39, and citing Duke Power Co. v. Greenwood County, 299  
U.S. 259, 267 (1936), as authority for the proposition that reversal or       
vacatur with a remand and direction to dismiss was "'the duty of the appellate
court"' in such cases, 340 U.S. at 39-40, while suggesting by implication that
it was the responsibility of litigants to ensure this happened, and indicating
a start-date for stipulated vacatur before 1950). However, in U.S. Bancorp    
Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994), while not directly    
addressing the question of whether stipulated vacatur had developed before    
Munsingwear, the Court both opined that "[t]he principles that have always    
been implicit in our treatment of moot cases counsel against extending        
Munsingwear to settlement," id. at 24, and took issue with Munsingwear's claim
that the practice of reversal or vacatur plus remand for dismissal for        
mootness was "established" by the time of Munsingwear, id. at 22-23. Fisch    
opines that Munsingwear gave rise to the "possibility of seeking vacatur when 
a case settled pending appeal." Fisch, Vanishing, supra note 18, at 330.

[FN201]. 474 U.S. 120 (1985); see Bonner Mall, 513 U.S. at 23 (citing Lake    
Coal Co. as authority for the proposition that "at least some [of the Supreme 
Court cases post-Munsingwear granting vacatur]specifically involved mootness  
by reason of settlement"). Fisch speculates that "the practice of vacating    
judgments following a postjudgment settlement of the litigation... appears to 
have its roots in the Second Circuit's decision in Nestle Co. v. Chester's    
Market, Inc. [756 F.2d 280 (2d Cir. 1985)]." Jill E. Fisch, Rewriting History:
The Propriety of Eradicating Prior Decisional Law Through Settlement and      
Vacatur, 76 Cornell L. Rev. 589, 589 (1991) [hereinafter Fisch, Rewriting     
History]. However, there is no indication in Chester's Market that the        
strategy of the litigants there, to make settlement conditional on vacatur of 
the first-instance court's decision, was novel. Further, the Chester's Market 
court cites two cases suggesting that parties to settlement were seeking      
vacatur before 1985, Amalgamated Clothing & Textile Workers Union v. J.P.     
Stevens & Co., 638 F.2d 7 (2d Cir. 1980) and Aviation Enterprises, Inc. v.    
Orr, 716 F.2d 1403 (D.C. Cir. 1983), as well as a 1984 edition of a federal   
civil procedure treatise opining that "parties should remain free to settle on
terms that require vacation of the judgment." Chester's Market, 756 F.2d at   
283 & n.3.

[FN202]. Brandon T. Allen, A New Rationale for an Old Practice: Vacatur and   
the Rules of Professional Responsibility, 76 Tex. L. Rev. 661, 675 (1998).

[FN203]. Fisch, Rewriting History, supra note 201, at 590 n.6.

[FN204]. 513 U.S. 18, 23 (1994).

[FN205]. See Fisch, Rewriting History, supra note 201, at 589 n.2.

[FN206]. See, e.g., Slavitt, supra note 17, at 134-36 (describing the split in
approaches to the question in federal circuits).

[FN207]. 834 P.2d 119 (Cal. 1992).

[FN208]. Stephen R. Barnett, Making Decisions Disappear: Depublication and    
Stipulated Reversal in the California Supreme Court, 26 Loy. L.A. L. Rev.     
1033, 1067 (1993) [hereinafter Barnett, Making Decisions Disappear] (noting   
that "[t]he difference between 'reversing' and 'vacating' a judgment would    
seem significant. Courts and commentators have debated stipulated 'vacatur,'  
with the majority apparently in opposition, but stipulated 'reversal' is a    
stronger and more questionable measure. To 'reverse' a judgment means to      
reject it, undo it, turn it around. 'To reverse a judgment, according to      
Webster's dictionary, means to overthrow it by a contrary decision, to make it
void, to undo or annul it for error.' A national legal newspaper has described
the procedure approved in Neary as 'agreeing that a four-month trial came out 
the opposite of how it did."') (citations omitted); see also Purcell, supra   
note 198, at 878 (explaining that "[v]acatur makes the judgment disappear;    
reversal turns the result around. With stipulated reversal, the winning       
litigant--whose arguments on the merits prevailed at trial--now loses, and the
losing litigant---whose arguments were rejected at trial--suddenly wins. Money
buys... a favorable verdict in a court of law.").

[FN209]. Neary, 834 P.2d at 127-33 (Kennard, J., dissenting).

[FN210]. Id. at 126-27 (Lucas, C.J., and Panelli, Arabian, & George, JJ.,     
concurring).

[FN211]. Barnett, Making Decisions Disappear, supra note 208, at 1065-66.

[FN212]. Id. at 1058 n.128.

[FN213]. Id. at 1058 n.128, 1065-66.

[FN214]. Neary, 834 P.2d at 121; see also id. at 125.

[FN215]. Id. at 125.

[FN216]. Id.

[FN217]. Eugene R. Anderson, Mark Garbowski & Daniel J. Healy, Accessing the  
Law: Out of the Frying Pan and into the Fire: the Emergence of Depublication  
in the Wake of Vacatur, 4 J. App. Prac. & Process 475, 479 (2002); see also S.
Kristina Starke, Exceptional Circumstances Justifying Vacatur When Lower Court
Decision Mooted by Settlement: Repeat Litigants Slide into Home with Second   
Circuit Decision: Major League Baseball Properties, Inc. v. Pacific Trading   
Cards, Inc., 1999 J. Disp. Resol. 97, 97 (noting that "[h]istorically, most   
state and federal courts would routinely grant vacatur" and that Bonner Mall  
has had the effect that "federal courts have been reluctant to grant such     
requests").

[FN218]. 900 P.2d 648, 654 (Cal. 1995).

[FN219]. U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 29     
(1994).

[FN220]. Id.

[FN221]. James C. Martin & Benjamin G. Shatz, Reverse Course: CCP Section     
128(a)(8) Has Succeeded in Reversing the Presumption in Favor of Stipulated   
Reversals, L.A. Law., Feb. 2003, at 24, 26.

[FN222]. See Steven R. Harmon, Unsettling Settlements: Should Stipulated      
Reversals Be Allowed to Trump Judgments' Collateral Estoppel Effects Under    
Neary?, 85 Cal. L. Rev. 479, 529 n.303 (1997). Harmon's citations in this     
footnote reveal that each of the appellate opinions granting stipulated       
withdrawals/reversals of trial court opinions, which involved "disappearing" /
stripping of precedential value from trial court opinions, appears in the     
advance sheets of theofficial reporter. They were not (as this signals)       
included in the bound volumes, as they were themselves "unpublished."

[FN223]. Martin & Shatz, supra note 221, at 26-27.

[FN224]. Id. at 26.

[FN225]. California ex rel. State Lands Comm'n v. Superior Court, 900 P.2d    
648, 654 (Cal. 1995).

[FN226]. Martin & Shatz, supra note 221, at 28.

[FN227]. Id. at 28; see Anderson et al., supra note 217, at 482-84            
(indicating that California courts still favor stipulated vacatur).

[FN228]. Judith Resnik, Mediating Preferences: Litigant Preferences for       
Process and Judicial Preferences for Settlement, 2002 J. Disp. Resol. 155, 158
n.24.

[FN229]. Anderson et al., supra note 217, 475-78; see also Scott B. Smith,    
Settling Federal Cases on Appeal: A Trap for the Unwary, 61 Ala. Law. 396, 397
(2000).

[FN230]. Anderson et al., supra note 217, at 480 & nn.19 & 20 (citing  Valero 
Terrestrial Corp. v. Paige, 211 F.3d 112, 118 (4th Cir. 2000), and Am. Games, 
Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1168 (9th Cir. 1998)).

[FN231]. See id. at 480 n.20.

[FN232]. Smith, supra note 229, at 398-99; see also Frank B. Cross, In  Praise
of Irrational Plaintiffs, 86 Cornell L. Rev. 1, 13-14 (2000) (noting that     
Bonner Mall has increased the use of "strategically selective litigation" by  
repeat-player litigants to control the development of precedent).

[FN233]. Anderson et al., supra note 217, at 481-82.

[FN234]. Id. at 482 & n.31; see also Allen, supra note 202, at 663-64  (noting
that "the courts of several states (most notably California and Texas)        
routinely grant vacatur motions"); Purcell, supra note 198, at 876-77; Starke,
supra note 217, at 97 (noting that "[h]istorically, most state and federal    
courts would routinely grant vacatur" and that Bonner Mall has had the effect 
that "federal courts have been reluctant to grant such requests").

[FN235]. Anderson et al., supra note 217, at 484-89; see also Starke, supra   
note 217 (discussing the Second Circuit's limiting of Bonner Mall in an       
intellectual property case, Major League Baseball Props., Inc., v. Pac.       
Trading Cards, Inc., 150 F.3d 149 (2d Cir. 1998)).

[FN236]. Anderson et al., supra note 217, at 489. The authors use the term    
"depublication" to describe unpublication. See id. at 489.

[FN237]. Michael A. Berch, Analysis of Arizona's Depublication Rule and       
Practice, 32 Ariz. St. L.J. 175, 182 (2000).

[FN238]. See Resnik, supra note 9, at 1521 & n.179 (recording one instance    
where the Ninth Circuit depublished an opinion).

[FN239]. See Berch, supra note 237, at 178 n.11 (noting that "[f]rom January  
1, 1990, to January 31, 1999, the Arizona Supreme Court depublished 63        
opinions"); id. at 185 (noting that Michigan depublished 28 in 3.5 years); id.
at 200 (noting that the class of opinions that can be depublished in Arizona  
is significantly narrower than that in California).

[FN240]. The opinions appear in the advance sheets of the official reporters  
but not in the published reporter volumes. See Gerald F. Uelmen, Publication  
and Depublication of California Court of Appeal Opinions: Is the Eraser       
Mightier Than the Pencil?, 26 Loy. L.A. L. Rev. 1007, 1011 (1993). While they 
are searchable on Westlaw, one needs the unofficial reporter cite to do a     
straightforward search by citation; the original cite to the official reporter
does not recover the opinion. Both citations are effective on LEXIS if the    
opinion is published in the unofficial as well as the official reporter.      
Stephen Barnett, who argues that unpublication has lost significance, both    
claims that "[w]ith today's methods of computer-based legal research, all such
obstacles are bypassed," Stephen R. Barnett, Depublication Deflating: The     
California Supreme Court's Wonderful Law-Making Machine Begins to             
Self-Destruct, 45 Hastings L.J. 519, 549 (1994) [hereinafter Barnett,         
Depublication Deflating], and seems to recognize that a range of different    
searching strategies may be required to actually produce the relevant opinion.
Id. at 550 n.175, 553 n.184. "The Supreme Court's depublication orders can be 
found by date of depublication in either of California's daily opinion        
reporting services." Id. at 550. However, this limits their searchability to  
persons who are sufficiently well informed to know the relevant date. There   
are, however, cases where the opinion has literally "disappeared," at least in
part, as a result of a combination of unpublication and depublication; Parts  
II and III of People v. Romero, 81 Cal. Rptr. 823 (1999), see infra note 395, 
are available neither on Westlaw nor LEXIS.

[FN241]. They cannot be cited by parties or courts except for the purposes of 
establishing law of the case, res judicata, or collateral estoppel, or when it
is of collateral relevance in a criminal or disciplinary proceeding. Cal. R.  
Ct. 977(b).

[FN242]. Cal. R. Ct. 979(a) does provide that parties requesting depublication
must attach proof of mailing to each party to the litigation that gave rise to
the opinion, and 979(b) provides for parties served to respond to the request 
and requires them to serve their responses on the parties. Proof of mailing to
the decisional court must also be attached in each case.

[FN243]. They can also be designated by another appellate court.

[FN244]. The Court of Appeal designated 11% of its opinions for publication in
1992. See Uelmen, supra note 240, at 1008.

[FN245]. Julie Hayward Biggs, Censoring the Law in California: Decertification
Revisited, 30 Hastings L.J. 1577, 1581 n.16 (1979). Biggs asserts without     
citation to authority that before the rule was adopted all California opinions
were adopted; if this is true, the official reporter system in California may 
have been the cause of this--publication did not depend on releasing opinions 
to West for their profit.

[FN246]. Uelmen, supra note 240, at 1011.

[FN247]. However, Rule 976(c) provided apparent authority for the practice of 
depublication before this amendment.

[FN248]. See, e.g., Barnett, Making Decisions Disappear, supra note 208, at   
1035-36.

[FN249]. Cal. R. Ct. 979(e).

[FN250]. Stephen R. Barnett, The Supremes: Rays of Light, Cal. Law., Apr.     
2003, at 13-14 [hereinafter Barnett, The Supremes].

[FN251]. Philip Carrizosa, Making the Law Disappear: Appellate Lawyers Are    
Learning to Exploit the Supreme Court's Willingness to Depublish Opinions,    
Cal. Law., Sept. 1989, at 65 (quoting Ellis J. Horvitz, partner, Horvitz, Levy
& Amerian).

[FN252]. Barnett, Making Decisions Disappear, supra note 208, at 1035.

[FN253]. See Barnett, The Supremes, supra note 250, at 13.

[FN254]. See id. at 14.

[FN255]. Id. at 13.

[FN256]. Uelmen, Publication and Depublication, supra note 240, at 1007-08.

[FN257]. Berch, supra note 237, at 175.

[FN258]. Julie Hayward Biggs, Decertification of Appellate Opinions: The Need 
for Articulated Judicial Reasoning and Certain Precedent in California Law, 50
S. Cal. L. Rev. 1181, 1185 n.20 (1977) (quoting private correspondence from   
former California Chief Justice Donald R. Wright (Nov. 9, 1967)) [hereinafter 
Biggs, Decertification of Appellate Opinions].

[FN259]. Joseph R. Grodin, The Depublication Practice of the California       
Supreme Court, 72 Cal. L. Rev. 514, 514-15 (1984).

[FN260]. Berch, supra note 237, at 188 (quoting Letter from Stanley G.        
Feldman, Chief Justice, Arizona Supreme Court, to Noel A. Fidel, Chief Judge, 
Division One, Arizona Court of Appeals 1 (Dec. 21, 1992)).

[FN261]. Berch, supra note 237, at 183; see also Slavitt, supra note 17, at   
127 (noting that "the [California]Supreme Court depublishes non-unanimous     
decisions more often than unanimous ones, enabling a narrow majority on the   
state Supreme Court to create a false sense of uniformity. An inherent        
advantage of the common law system is thereby eliminated: judges with         
different philosophies are no longer able to challenge each other.").

[FN262]. Grodin, supra note 259, at 522; see also Biggs, supra note 258, at   
1185 n.20 (quoting private correspondence from former California Chief Justice
Donald R. Wright (Nov. 9, 1976), who wrote that "with few exceptions, the only
opinions which are ordered to be nonpublished are those in which the correct  
result has been reached by the court of appeal but the opinion contains       
language which is an erroneous statement of law").

[FN263]. Barnett, Making Decisions Disappear, supra note 208, at 1036.

[FN264]. See Phillip Dubois, The Negative Side of Judicial Decision Making:   
Depublication As a Tool of Judicial Power and Administration on State Courts  
of Last Resort, 33 Vill. L. Rev. 469, 501 (1988).

[FN265]. Hangley, supra note 144, at 662 (noting that they are sometimes      
referred to as statements, unpublished orders, or memoranda).

[FN266]. Patricia M. Wald, The Problem with the Courts: Black-Robed           
Bureaucracy or Collegiality Under Challenge?, 42 Md. L. Rev. 766, 768 (1983).

[FN267]. See J. Clark Kelso, A Report on the California Appellate System:     
Special Report on California Appellate Justice, 45 Hastings L.J. 433, 489-90  
(1994).

[FN268]. Hangley, supra note 144, at 667.

[FN269]. See Kelso, supra note 267, at 491.

[FN270]. Hangley, supra note 144, at 647.

[FN271]. Id.

[FN272]. Id. at 674.

[FN273]. Merritt & Brudney, supra note 192, at 120.

[FN274]. See Martha J. Dragich, Will the Federal Courts of Appeals Perish If  
They Publish? Or Does the Declining Use of Opinions to Explain and Justify    
Judicial Decisions Pose a Greater Threat?, 44 Am. U. L. Rev. 757, 782-83      
(1995).

[FN275]. Hangley, supra note 144, at 650.

[FN276]. Neary v. Regents of Univ. of Cal., 834 P.2d 119, 127 (1992).

[FN277]. Id.; see also Fisch, Rewriting History, supra note 201, at 593       
(arguing that stipulated vacatur "perverts the judicial decision into a       
negotiable commodity, engendering distortion of, and disrespect for, the role 
of the courts").

[FN278]. Neary, 834 P.2d at 128.

[FN279]. Matter of Mem'l Hosp. of Iowa County, Inc., 862 F.2d 1299, 1302  (7th
Cir. 1988).

[FN280]. Id. at 1302-03.

[FN281]. Kelso, supra note 267, at 487-88.

[FN282]. Id. at 494; see also Grodin, supra note 259, at 521-22 (arguing that 
depublication results in a lack of guidance to lawyers and lower courts).

[FN283]. Berch, supra note 237, at 194.

[FN284]. Id. at 195.

[FN285]. Id. at 198.

[FN286]. Id. at 196 n.100.

[FN287]. See Matter of the Adoption of Evan, 153 Misc. 2d 844 (Sur. Ct., N.Y. 
County 1992) (citing In re Minor Child,  No. 1Ju-86-73 P/A (Alaska Super. Ct. 
Feb. 6, 1987) and In re A.O.L., No. 154-85-25 P/A (Alaska Super. Ct. 1985));  
Charlotte J. Patterson, Adoption of Minor Children by Lesbian and Gay Adults: 
A Social Science Perspective,2 Duke J. Gender L. & Pol'y 191, 195-96 n.23     
(1995) (citing In re Adoption of a Minor Child (C), No. 1-JU-86-73 P/A (Alaska
First Jud. Dist. Feb. 6, 1987)). Thanks to American University Washington     
College of Law students Aaron Morris and Abigayle Needham (2005) for this     
information. Despite Mr. Morris' letter to the Alaskan courts seeking copies  
of these opinions they have not been procured. See E-mail from Aaron Morris to
Penelope Pether, Professor, American University Washington College of Law     
(Jan. 2, 2004, 16:42:28 PST) (on file with author). However, the court clerk  
subsequently contacted Mr. Morris by telephone, informing him that he         
"need[ed] to make an argument to the judge as to why he or she should release 
the adoption cases ... [because] the cases are closed by statute because they 
involve minors." E-mail from Aaron Morris to Penelope Pether, Professor,      
American University Washington College of Law (Feb. 10, 2004, 12:00:13 PST)   
(on file with author). This explanation seems inherently implausible given the
significant number of published Alaskan adoption cases, most of which involve 
minors.

[FN288]. .See Robel, Practice, supra note 12, at 407 tbl. 3.

[FN289]. Patricia M. Wald, The Rhetoric of Results and the Results of         
Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995).

[FN290]. Marcotte, supra note 180, at 28.

[FN291]. Arnold, supra note 7, at 223. Judge Arnold disclaims any knowledge of
judges actually engaging in this practice. Id.

[FN292]. Marcotte, supra note 180, at 26.

[FN293]. Cal. R. Ct. 979.

[FN294]. Id.

[FN295]. Cal. R. Ct. 979(d).

[FN296]. Uelmen, supra note 240, at 1011.

[FN297]. Justice Grodin endorsed this recommendation in 1984, albeit with     
proposed enhancements that would considerably complicate and delay the        
bestowing of precedential value on appellate court decisions certified "for   
publication." See Grodin, supra note 259, at 524.

[FN298]. See Biggs, supra note 245, at 1577 n.1.

[FN299]. See Gerald F. Uelmen, Depublication: The Paper Trail Leading to a    
Depublication Order Should Be Accessible to Everyone, L.A. Law., Aug.-Sept.   
1990, at 49; see also Paige Merrill Baker, Depublication: The New Starchamber,
18 W. St. U. L. Rev. 313, 326 (1990).

[FN300]. Baker, supra note 299, at 323, 326.

[FN301]. Gardner v. Charles Schwab & Co., 267 Cal. Rptr. 326, 338-39  (1990)  
(depublished by order of the California Supreme Court, May 18, 1990). Slavitt 
labels this depublication ironic. Slavitt, supra note 17, at 133. It is       
perhaps more accurate to call it deaf to irony. One might also with           
justification call it cynical and flagrantly unconcerned with public          
perceptions of judicial ethics.

[FN302]. Biggs, supra note 245, at 1578.

[FN303]. Id. at 1580.

[FN304]. Id. at 1580-81.

[FN305]. Barnett, Making Decisions Disappear, supra note 208, at 1048.

[FN306]. Cal. Civ. App. Prac. <section> 14.20 (1985). Biggs' research suggests
that they may be filed but that this is not done "regularly or consistently." 
Biggs, supra note 245, at 1592 n.62.

[FN307]. Baker, supra note 299, at 326. While Baker cites to Biggs, supra note
245, at 1592 n.62, the original source for the internal quotation is Justice  
Frank Newman of the California Supreme Court, whose remarks at a Los Angeles  
County Bar Association luncheon meeting were reported in L.A. Daily J., Jan.  
15, 1979, at 1.

[FN308]. Baker, supra note 299, at 323, 326.

[FN309]. Grodin, supra note 259, at 515.

[FN310]. Merritt & Brudney, supra note 192, at 79.

[FN311]. Hangley, supra note 144, at 651 (citing Judges Kozinski and Reinhardt
to the effect that judges on the Ninth Circuit rarely edit opinions in        
"screening" cases, drafted by staff attorneys). See also Wald, supra note 289,
at 1383-85, for an account of the "ill-kept secret that law clerks often do   
early drafts of opinions for their judges."

[FN312]. Carolyn Dineen King, A Matter of Conscience, 28 Hous. L. Rev. 955,   
957-58 (1991) (quoting Chief Justice William Rehnquist, Remarks at the Annual 
Dinner of the American Bar Association (Aug. 9, 1976)).

[FN313]. Stephen Breyer, Administering Justice in the First Circuit, 24       
Suffolk U. L. Rev. 29, 32-33 (1990).

[FN314]. See, e.g., Cecil 1987, supra note 132, at 5 (noting that "six federal
appellate courts dispose of at least half their cases without [oral]          
argument"); id. at 6 (suggesting that "factors other than the stated criteria 
explain the rate of nonargument disposition"); id. at 7 (noting that "in the  
Ninth Circuit, the staff attorneys review the entire caseload, identify       
issues, and prepare lengthy memoranda for cases they recommend for nonargument
decision" and that the "judges in the Fifth Circuit... rely heavily on staff  
attorneys for written material to be used in drafting the final disposition");
id. at 11 (noting that oral argument "guards against undue reliance on staff  
work"); id. at 34-35 (documenting Fifth Circuit staff attorney dissatisfaction
with dealing with a largely pro se caseload); id. at 12, 33 (noting that      
persons other than judges make screening decisions in relation to certain     
classes of cases in the Fifth Circuit); id. at 34 (documenting the memoranda  
prepared by staff attorneys for judges in screened cases which "include all   
the arguments and counterarguments raised by the parties, describe the        
procedural history and issues, analyze the record and authorities, set out the
facts with citations to the record, and explain the recommendation for        
disposition without argument" and further noting that "it is very important to
set forth very carefully in the memorandum the facts of the case, because the 
judges must have this material to decide the case"); id. at 37-38 (noting that
some Fifth Circuit judges delegate decisions about second-tier screening [of  
material prepared by staff attorneys] to their chambers clerks and that some  
of these judges delegate the drafting of opinions in these same cases to      
chambers clerks); see also Joe Cecil & Donna Stienstra, Deciding Cases Without
Argument: A Description of Procedures in the Courts of Appeals, Fed, Jud.     
Center, 1985, available at 1985 WL 71557 [hereinafter Cecil 1985]; Stienstra, 
supra note 194.

[FN315]. Cecil and Stienstra claim that this particular process was           
inaugurated by the Fifth Circuit in 1968. See Cecil 1987, supra note 132, at  
30-31. However, examination of the Appendix to Jones No. 2 and the Fifth      
Circuit's Decision in Murphy v. Houma Well Serv., 409 F.2d 804 (5th Cir. 1969)
, establishes that the Fourth Circuit inaugurated screening for nonargument   
well before the Fifth Circuit. The opinions are also worth comparing for the  
stark differences in the discourses mobilized by Judges Haynsworth and Brown  
about the necessity for direct judicial involvement in screening to protect   
due process and the rights of indigent and unrepresented appellants.

[FN316]. Cecil 1987, supra note 132, at 28.

[FN317]. See generally William M. Richman & William L. Reynolds, Elitism,     
Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81
Cornell L. Rev. 273 (1996), for an account of these practices. Cecil and      
Stienstra also examine the connections between screening for the nonargument  
track and another practice of private judging not directly dealt with in this 
article, disposing of cases by "judgment order" that gives no reasons or the  
barest of reasons for the court's decision. Cecil 1987, supra note 132, at 29-
30.

[FN318]. See Unpublished Judicial Opinions: Hearing Before the Subcomm. on the
Courts, the Internet, and Intellectual Prop. of the House Comm. on the        
Judiciary, 107th Cong. 41 (2002) (statement of Judge Alex Kozinski, United    
States Court of Appeals for the Ninth Circuit) [hereinafter Kozinski          
Testimony].

[FN319]. Richman & Reynolds, supra note 317, at 277.

[FN320]. Id.

[FN321]. Cecil 1987, supra note 132, at 30.

[FN322]. See William L. Reynolds & William M. Richman, Limited Publication in 
the Fourth and Sixth Circuits, 1979 Duke L.J. 807, 841.

[FN323]. Wald, supra note 289, at 1376.

[FN324]. Songer, supra note 25.

[FN325]. Id. at 311.

[FN326]. Id. at 312.

[FN327]. See generally Uelmen, supra note 240.

[FN328]. Songer, supra note 25, at 312-13.

[FN329]. Robel, Practice, supra note 12, at 403.

[FN330]. Dubois, supra note 264, at 482, 484, 511 (1988).

[FN331]. Gerald P. Uelmen, Court of Appeal Standings, Cal. Law., July 1998, at
46.

[FN332]. Carrizosa, supra note 251, at 65.

[FN333]. Grodin, supra note 259, at 524-25 (quoting Report of the Chief       
Justice's Advisory Committee for an Effective Publication Rule, June 1, 1979).

[FN334]. These are civil rights actions brought by prisoners.

[FN335]. Wald, supra note 289, at 1376.

[FN336]. Hannon, supra note 21, at 217-18.

[FN337]. Id. at 218-21.

[FN338]. Merrit & Brudney, supra note 192, at 119.

[FN339]. Id. at 74-75.

[FN340]. Id. at 112-13, 117.

[FN341]. Id. at 75.

[FN342]. Ruth Colker, The Americans with Disabilities Act: A Windfall for     
Defendants, 34 Harv. C.R.-C.L. L. Rev. 99 (1999).

[FN343]. Id. at 105.

[FN344]. Id. at 104.

[FN345]. Id. at 99 (quoting Trevor Armbrister, A Good Law Gone Bad, Readers   
Dig., May 1998, at 145, 149). Of special interest in this context is the      
evidence, id. at 100 n.10, that A.D.A. and prisoners' rights cases have some  
of the lowest rates of success of any civil rights litigation.

[FN346]. Merritt & Brudney, supra note 192, at 111-12.

[FN347]. In re Rules of the United States Court of Appeals for the Tenth      
Circuit, 955 F.2d 36, 36 (10th Cir. 1992). In other jurisdictions, for example
the United States Court of Appeals for the District of Columbia, the two parts
of the unpublication rule, those relating to citation and to precedential     
value, are separated (though one does reference and incorporate the other).

[FN348]. Id.

[FN349]. I am laboring with what may seem to be a minor infelicity of         
expression because, as my analysis of Jones No. 2 will go on to show, verbal  
obfuscation is a feature of these opinions on the subject of unpublication.

[FN350]. Rules of Tenth Circuit, 955 F.2d at 36.

[FN351]. See id. at 37 n.1.

[FN352]. See, e.g., Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001);         
Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). The varied claims  
that unpublication is unconstitutional include (inter alia) the claim that    
unpublication is ultra vires the judicial power. Others depend on due process 
and equal protection grounds. See David Dunn, Unreported Decisions in the     
United States Courts of Appeals, 63 Cornell L. Rev. 128, 141-45 (1977); see   
also Katsh & Chachkes, supra note 34, at 297-319 (opining that unpublication  
is unconstitutional on both Article III and First Amendment grounds); Drew R. 
Quitschau, Anastasoff v. United States: Uncertainty in the Eighth Circuit-- Is
there a Constitutional Right to Cite Unpublished Opinions, 54 Ark. L. Rev.    
847, 848 (2002) (arguing that unpublication rules are unconstitutional because
they "violate[] stare decisis... abridge[] free speech, and [deny] meaningful 
court access").

[FN353]. Rules of Tenth Circuit, 955 F.2d at 37.

[FN354]. Id. at 37 n.1.

[FN355]. Id.

[FN356]. Id. (emphasis added).

[FN357]. Barnett, Making Decisions Disappear, supra note 208, at 1037-46,     
1055-57; see also Berch, supra note 237, at 198 (noting that a depublication  
order "approaches an advisory opinion"); Steven B. Katz, California's Curious 
Practice of "Pocket Review", 3 J. App. Prac. & Process 385, 393-94 (2001).

[FN358]. Kelso, supra note 267, at 495.

[FN359]. Id. at 438-43; see also Berch, supra note 237, at 185 (noting that   
one justice of the Michigan Supreme Court dissented from every depublication  
order "believing the practice constitutionally infirm because it makes law    
without deciding a case, without giving plenary consideration to the issue or 
notice to those actually or potentially affected by the depublication, and    
without specifying reasons for its decision").

[FN360]. Kelso, supra note 267, at 467.

[FN361]. Uelmen, supra note 240, at 1020.

[FN362]. Berch, supra note 237, at 197-98.

[FN363]. Kelso, supra note 267, at 493.

[FN364]. See, e.g., Grodin, supra note 259, at 522.

[FN365]. Id. (noting that "[o]ften these opinions are preserved for posterity 
in unofficial reporting systems that serve specialized segments of the bar"   
and that "copies are available for public examination" (presuming, of course, 
that the public is aware of their existence and has the identifying           
information that would enable them to identify the opinion; availability does 
not, after all, mean Boolean searchability)).

[FN366]. Berch, supra note 237, at 178.

[FN367]. Katz, supra note 357, at 390.

[FN368]. Berch, supra note 237, at 200.

[FN369]. 510 U.S. 27, 40 (1993).

[FN370]. Fisch, Rewriting History, supra note 201, at 629-32.

[FN371]. Id. at 640-41; see also Fisch, Vanishing, supra note 18, at 358- 60, 
363.

[FN372]. Barnett, Making Decisions Disappear, supra note 208, at 1061         
(footnotes omitted).

[FN373]. See, e.g., Biggs, supra note 245, at 1581; Robert Seligson & John S. 
Warnlof, The Use of Unreported Cases in California, 24 Hastings L.J. 37, 50   
(1972).

[FN374]. Grodin, supra note 259, at 523; see also Berch, supra note 237, at   
187 (noting the opposition of Arizona Chief Judge Kleinschmidt's view that    
published opinions operate as "'a check on the court of last resort"' and that
erroneous opinions are "part of the legal dialogue").

[FN375]. Grodin, supra note 259, at 522.

[FN376]. Uelmen, supra note 240, at 1008, 1020.

[FN377]. Berch, supra note 237, at 187.

[FN378]. See Barnett, Making Decisions Disappear, supra note 208, at 1036     
(noting that the practice adds a tool for shaping the law in addition to      
rehearing or denying certiorari); see also Biggs, supra note 245, at 1582.

[FN379]. Grodin, supra note 259, at 522.

[FN380]. Uelmen, supra note 240, at 1019.

[FN381]. See id. at 1020 (opining that "[t]he existence of different judicial 
philosophies is one of the great strengths of our legal system. Judges of     
different philosophies challenge one another so that assumptions are          
constantly retested in the face of changing circumstances.").

[FN382]. See id. at 1019 (noting that "[t]o the extent that depublication is  
part of a court's effort to maintain consistency in the law, it is not        
surprising that the divisions of the court of appeal, dominated by a political
philosophy at odds with that of the supreme court, will see more of their     
opinions depublished").

[FN383]. This is despite the repeated claim that depublication is both        
efficient and saves the court work and resources. See, e.g., Berch, supra note
237, at 181 n.15 (quoting private correspondence from former Arizona Chief    
Justice Stanley Feldman claiming that it saves judicial resources).

[FN384]. Grodin, supra note 259, at 515-20.

[FN385]. Uelmen, supra note 240, at 1018.

[FN386]. See, e.g., Berch, supra note 237, at 191-93. Berch's discussion of   
trends in depublication is blind to these inferences; it is also worth noting 
that his analysis suggests there may be a disproportionately high ratio of    
criminal cases among Arizona's depublished archive, a matter his analysis     
likewise does not address.

[FN387]. See id. at 189.

[FN388].  Id. at 179 n.13.

[FN389]. 90 Cal. Rptr. 2d. 680 (Cal. Ct. App. 1999).

[FN390]. Katz, supra note 357, at 387.

[FN391]. Id. at 386 n.5.

[FN392]. Id. at 391.

[FN393]. See Alice J. Gallin, The Cultural Defense: Undermining the Policies  
Against Domestic Violence, 35 B.C. L. Rev. 723, 734 (1993).

[FN394]. People v. Wu, 286 Cal. Rptr. 868 (Cal. Ct. App. 1991), reh'g denied, 
(Cal. Ct. App. Nov. 13, 1991), review denied and opinion ordered depublished, 
(Cal. Jan. 23, 1992).

[FN395]. See People v. Rhines, 182 Cal. Rptr. 478, 507 (1982); see also       
People v. Romero, 81 Cal. Rptr. 823 (1999). Romero is particularly interesting
for its internal gaps; two parts of the opinion were not certified for        
publication, and I have been unable to procure copies of those sections on    
LEXIS or Westlaw. The opinion also refers to a case relied on by the defendant
which was depublished; likewise, it is not available online.

[FN396]. Alison Dundes Renteln, A Justification of the Cultural Defense As    
Partial Excuse, 2 S. Cal. Rev. L. & Women's Stud. 437, 473-74 (1993).

[FN397]. Slavitt, supra note 17, at 129.

[FN398]. Marcotte, supra note 180, at 26 (noting that Lake Geneva, Wisconsin, 
lawyer Berwyn Braden argues that "unpublished opinions ... too often ...      
influence judges' decisions through a 'jungle-drum network of                 
authority'....Such opinions are being used as de facto authority in           
[Wisconsin] by those with access to them through legal publishing services, on
microfiche at the state's law library and via computer data bases such as...  
Lexis and... Westlaw.").

[FN399]. See generally Richman & Reynolds, supra note 317.

[FN400]. Robel, Practice, supra note 12, at 402.

[FN401]. Richman & Reynolds, supra note 317, at 280-81.

[FN402]. See, e.g., Charles E. Carpenter, Jr., The No-Citation Rule for       
Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate      
Courts Justify the Means of Secrecy?, 50 S.C. L. Rev. 235, 252-53 (1998);     
Robel, Myth, supra note 12, at 958; Slavitt, supra note 17, at 118-20 (noting 
Galanter's terminology). No scholarly work has yet been done on the effects of
unpublication in cases brought under the Violence Against Women Act, covered  
by the Prison Litigation Reform Act, or involving sexual misconduct by prison 
officers against inmates; in antitrust, tax, and intellectual property cases; 
or in certain kinds of criminal appeals, at least in the Fourth Circuit. There
is enough anecdotal evidence, however, to suggest that these would be fruitful
areas for study.

[FN403]. Slavitt, supra note 17, at 110-12.

[FN404]. Id. at 110. A Fourth Circuit decision holding that homosexuality     
might attract strict scrutiny was unpublished by the Fourth Circuit. See      
Johnson v. Knable, 1988 WL 119136 (4th Cir. 1988) (suggesting that an inmate's
equal protection rights may be violated by his being denied a prison work     
assignment because he was homosexual). Slavitt and Berch suggest that this was
because of its favorable treatment of gays. Berch, supra note 237, at 198;    
Slavitt, supra note 17, at 110; see also Arthur S. Leonard, Letter to the     
Editor, Nat'l L.J., July 15, 2002, at A21 (speculating that courts are        
"embarrass[ed]" by decisions dealing with "gay, lesbian, bisexual and         
transgendered legal issues" either because they are "patently unfair," or     
because of "the facts they are reciting in the opinion").

[FN405]. William T. Hangley, Chair of the Federal Rules of Evidence Committee,
quoting Judge Kozinski and Judge Reinhardt's account of Ninth Circuit         
practices, has described the Ninth Circuit's practices of preparing           
unpublished opinions, "which are churned out at a rate of more than one per   
day per panel," as follows: 
  Most are drafted by law clerks with relatively few edits from the judges.   
Fully 40 percent of our [unpublished opinions] are in screening cases, which  
are prepared by our central staff. Every month, three judges meet with the    
staff attorneys who present us with the briefs, records, and proposed         
[unpublished opinions] in 100 to 150 screening cases. If we unanimously agree 
that the case can be resolved without oral argument, we make sure the result  
is correct, but we seldom edit the [unpublished opinion], much less rewrite it
from scratch. 
  Hangley, supra note 144, at 651.

[FN406]. Cecil 1987, supra note 132, at 15, 17.

[FN407]. Id. at 24.

[FN408]. Id. at 24. See id. at 33, for a detailed account of the cases the    
Fifth Circuit routes to the nonargument track.

[FN409]. See Reynolds & Richman, supra note 322, at 815 (noting that "the     
Fourth Circuit has a significantly greater volume of state prisoner litigation
than does the Sixth. In the Fourth Circuit in 1977, prisoner cases accounted  
for nearly a quarter of the entire appellate docket ....").

[FN410]. Id. at 816.

[FN411]. See Penelope Pether, Critical Discourse Analysis, Rape Law and the   
Jury Instruction Simplication Project, 24 S. Ill. U. L.J. 53, 89-94 (1999),   
for an account of Pierre Bourdieu's theory of the habitus, with special       
reference to the professional subject formation of lawyers.

[FN412]. Robel, Myth, supra note 12, at 952-53.

[FN413]. Id.

[FN414]. See generally Cecil 1987, supra note 132; Cecil 1985, supra note 314;
Stienstra, supra note 194.

[FN415]. See supra note 401 & 414.

[FN416]. Slavitt, supra note 17, at 119, 137-38.

[FN417]. Fisch, Rewriting History, supra note 201, at 612-24.

[FN418]. Id. at 616.

[FN419]. Neary v. Regents of Univ. of Cal., 834 P.2d 119, 127 (Cal. 1992).

[FN420]. See Barnett, Making Decisions Disappear, supra note 208; Barnett,    
Depublication Deflating, supra note 240.

[FN421]. Barnett, Making Decisions Disappear, supra note 208, at 1055.

[FN422]. Barnett, Depublication Deflating, supra note 240, at 568.

[FN423]. Id.

[FN424]. Cynthia D. v. Superior Court, 851 P.2d 1307, 1310 (Cal. 1993).

[FN425]. In re Michaela C., 3 Cal. Rptr. 2d 869 (Cal. Ct. App. 1992), ordered 
depublished, California Supreme Court Minutes, Apr. 23, 1992, in Cal. Official
Rep. (advance sheet), May 26, 1992, 1t 17-18.

[FN426]. Barnett, Depublication Deflating, supra note 240, at 558-60. Another 
line of family law cases, In re Marriage of Padilla, 22 Cal. Rptr. 2d 630     
(Cal. Ct. App. 1993), and In re Marriage of Damico, 19 Cal. Rptr. 2d 88 (Cal. 
Ct. App. 1993), is cited by Barnett as authority for the proposition that     
"[a]s the supreme court takes increasing liberties with Rule 977(a), the      
courts of appeal... are joining in." Barnett, Depublication Deflating, supra  
note 240, at 560. He describes them as "involving another clash between lines 
of appellate authority--on whether concealment of the child by the custodial  
parent affects enforcement of child support obligations." Id. at 561. Padilla 
was automatically depublished when the supreme court granted review under a   
court rule, rather than being electively depublished. Thus Barnett's dogged   
focus on the procedural is not incongruous here.

[FN427]. See, e.g., Ana M. Novoa, Count the Brown Faces: Where Is the         
"Family" in the Family Law of Child Protective Services, 1 Scholar 5 (1999).

[FN428]. Fisch, Captive Courts, supra note 12, at 199.

[FN429]. Id.

[FN430]. Id. at 201.

[FN431]. Id. at 201-03.

[FN432]. Id. at 203.

[FN433]. Id. at 203-08; see also Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.
Phillips Corp. 510 U.S. 27, 41 (1993) (Stevens & Blackmun, JJ., dissenting)   
(opining that "[t]he public interest in preserving the work product of the    
judicial system should always at least be weighed in the balance before... a  
motion [seeking vacatur] is granted").

[FN434]. Fisch, Captive Courts, supra note 12, at 204-05 (citations omitted). 
The point about repeat litigants getting rid of unfavorable precedent via     
vacatur and then reaping the double benefit of claiming that the authority on 
a question "goes their way" is also noted by Anderson et al., supra note 217, 
at 475-76.

[FN435]. Fisch, Rewriting History, supra note 201, at 626-29.

[FN436]. Allen, supra note 202, at 672.

[FN437]. Dakin v. Dep't of Forestry & Fire Prot., 21 Cal. Rptr. 2d 490  (Cal. 
Ct. App. 1993).

[FN438]. Barnett, Depublication Deflating, supra note 240, at 562.

[FN439]. Dakin, 21 Cal. Rptr. 2d at 491-92.

[FN440]. Id. at 493-94 (citation omitted).

[FN441]. Robel, Myth, supra note 12, at 955-59.

[FN442]. Id. at 955.

[FN443]. Id. at 956-58.

[FN444]. Id. at 958.

[FN445]. Cecil 1987, supra note 132, at 24. This results in criminal law cases
being disproportionately resolved by unpublished opinions. This phenomenon may
in part explain why seemingly precedential family law decisions are relegated 
to unpublished status. Like criminal cases, they are often by their nature    
fact sensitive. The contemporary U.S. doctrine of precedent, developed in the 
context of the practice of private judging, places a premium on "rule making" 
in deciding which cases are clearly precedential and thus result in published 
opinions. "Appellate courts often choose not to publish less important        
opinions that merely apply existing law to a different set of facts."         
Marcotte, supra note 180, at 26.

[FN446]. Martin & Shatz, supra note 221, at 28.

[FN447]. Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp., 510    
U.S. 27, 40 (1993) (Stevens & Blackmun, JJ., dissenting).

[FN448]. Neary v. Regents of Univ. of Cal., 834 P.2d 119, 127 (Cal. 1992)     
(Kennard, J., dissenting); see also Matter of Mem'l Hosp. of Iowa County,     
Inc., 862 F.2d 1299, 1302 (7th Cir. 1988); Neary, 834 P.2d at 132 ("[The rule 
in this case] erodes public confidence in the judiciary by fostering the      
perception that litigants having sufficient wealth may buy their way out of   
the ordinary collateral consequences of public adjudications.").

[FN449]. Fisch, Vanishing, supra note 18, at 327 n.8, 328 n.9.

[FN450]. 61 F.3d 117, 118 (1st Cir. 1995) (opining that "given the different  
posture of this case, the equities plainly favor vacatur" because the I.N.S., 
"a repeat player before the courts, is primarily concerned with the           
precedential effect of the decision below" and "did not by its own initiative 
relinquish its right to vacatur").

[FN451]. Id. at 117-18.

[FN452]. Purcell, supra note 198, at 886 n.106; see also Fisch, Vanishing,    
supra note 18, at 361-62.

[FN453]. Slavitt, supra note 17, at 138. See also Robert P. Deyling,          
Dangerous Precedent: Federal Government Attempts to Vacate Judicial Decisions 
upon Settlement, 27 J. Marshall L. Rev. 689 (1994), for an account of the     
federal government's attempts to use vacatur as a condition of settlement in  
cases involving "eligibility for Social Security benefits, access to secret   
government information, and the Medicare program."

[FN454]. Resnik, supra note 9, at 1489 & n.74.

[FN455]. Fisch, Vanishing, supra 18, at 356; see also Anderson et al., supra  
note 217, at 475-76 (noting the widespread use of vacatur by insurance        
companies before Bonner Mall).

[FN456]. See Barnett, Depublication Deflating, supra note 240, at 534.

[FN457]. See id. at 534 (emphasis added).

[FN458]. See id. at 534 n.89. The case was, like many discussed in my         
critique, supra, of Barnett's claims that depublication has become a          
deadletter because of actions taken by the California Supreme Court, one      
involving appeals sentences that exceeded "double the base limit." In a       
decision that would, but for depublication, have advantaged other prisoners   
awarded excessive sentences, the court of appeals held in favor of the        
sentenced prisoner. People v. Matus, 250 Cal. Rptr. 414 (Cal. Ct. App. 1988), 
depublished, 773 P.2d 450 (Cal. 1989).

[FN459]. Baker, supra note 299, at 327. While the author goes on to suggest   
that the depublished opinions, if left on the books, would cause economic     
havoc to one-shotter litigants, the case he uses as authority, Aetna Casaulty 
& Surety Co. v. Velasco, 240 Cal. Rptr. 290 (Cal. Ct. App. 1987), was in fact 
a case where an opinion favorable to a one-shotter litigant was depublished at
the behest of the insurance industry. See Baker, supra note 299, at 326 n.150.

[FN460]. Id. at 326-27; see also Barnett, Making Decisions Disappear, supra   
note 208, at 1047.

[FN461]. Baker, supra note 299, at 327.

[FN462]. The Deeds They Have Undone, Cal. Law., Dec. 1990, at 18 (Hearsay     
column).

[FN463]. Id.; see also Baker, supra note 299, at 321 n.98.

[FN464]. Baker, supra note 299, at 329 n.150.

[FN465]. See generally William L. Reynolds & William M. Richman, The          
Non-Precedential Precedent--Limited Publication and No-Citation Rules in the  
United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978) [hereinafter   
Reynolds & Richman, Non-Precedential]; see also William L. Reynolds & William 
M. Richman, An Evaluation of Limited Publication in the United States Courts  
of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573 (1981) [hereinafter   
Reynolds & Richman, Evaluation].

[FN466]. Reynolds & Richman, Non-Precedential, supra note 465, at 1188-89.

[FN467]. Id. at 1167-99.

[FN468]. Id. at 1199.

[FN469]. Jones No. 2, 465 F.2d 1091, 1094 (4th Cir. 1972).

[FN470]. Id.

[FN471]. Songer, supra note 25, at 308.

[FN472]. Id.

[FN473]. See Hangley, supra note 144, at 660 n.45.

[FN474]. See Dragich, supra note 274, at 787 (discussing the "imbalance in    
resources available to attorneys by effectively making certain opinions       
available only through high-cost commercial databases").

[FN475]. Robel, Myth, supra note 12, at 940.

[FN476]. See Dragich, supra note 274, at 774-75.

[FN477]. Hangley, supra note 144, at 654.

[FN478]. See, e.g., id.

[FN479]. McKeown Presentation, supra note 5 (describing an earlier version of 
this anxiety); see also Kelso, supra note 267, at 489.

[FN480]. These legal publishers include, for example, BNA and CCH.

[FN481]. See, e.g., Robel, Practice, supra note 12, at 401 (noting that       
"[f]or many participants in the federal appellate system, uncitable opinions  
are part of the daily diet of cases that they examine and analyze in          
practice"); id. at 405-40 (detailing the uses to which lawyers and judges put 
unpublished opinions in their practice); see also id. at 405 (noting that     
"attorneys rank avoiding the 'proliferation of published opinions' next to    
last" when "asked to rank a number of possible priorities for courts of       
appeals").

[FN482]. Id. at 407-08.

[FN483]. Id. at 405.

[FN484]. Id. at 405-06.

[FN485]. DuVivier, supra note 12, at 398-99 (citation omitted).

[FN486]. Arnold, supra note 7, at 224. Arnold cites United States v. Kocourek,
116 F.3d 481 (8th Cir. 1997), as authority for the proposition that "the      
constitutionality of [18 U.S.C. <section> 922(j)] is still open in this       
Circuit." Arnold, supra note 7, at 224. This is despite the fact that the U.S.
Supreme Court held unconstitutional another, similarly worded subsection of   
the same statute, which criminalized possessing guns in schools rather than   
possessing stolen guns in United States v. Lopez, 514 U.S. 549 (1995). Also,  
Arnold notes that the Fifth Circuit cited to Kocourek when the issue came     
before it in United States v. Luna, 165 F.3d 316 (5th Cir. 1999). Arnold,     
supra note 7, at 225. Judge Wald, writing in 1995, indicated that: 
  [W]hen I came onto the D.C. Circuit in 1979, we rarely if ever disposed of a
criminal appeal without an opinion; now we handle 72% that way. Not           
surprisingly, perusal of these "unworthies" shows that some, in fact, deal    
with issues not clearly controlled by prior precedent and some, contrary to   
the genre, require ten to fifteen typescript pages of highly condensed and    
largely conclusory reasoning to come to judgment. 
  Wald, supra note 289, at 1374 (citation omitted).

[FN487]. 526 U.S. 603 (1999).

[FN488]. Id. at 616 (citation omitted).

[FN489]. See Hannon, supra note 21, at 225-31, 241 app.A.

[FN490]. United States v. Edge Broad. Co., 509 U.S. 418, 425 n.3 (1993).

[FN491]. See Kozinski Testimony, supra note 318, at 100, 105-06, and Richman &
Reynolds, supra note 317, for evidence that Judge Kozinski is opposed to the  
creation of new federal circuits and additional federal judges and that the   
federal judiciary has generally been opposed to increasing the number of      
federal judicial appointments.

[FN492]. Hart v. Massanari, 266 F.3d 1155, 1177 (9th Cir. 2001).

[FN493]. DuVivier, supra note 12, at 398.

[FN494]. Hart, 266 F.3d at 1155.

[FN495]. See Kozinski Testimony, supra note 318.

[FN496]. Hart, 266 F.3d at 1177-78.

[FN497]. Hangley, supra note 144, at 681.

[FN498]. Biggs, supra note 245, at 1581-82.

[FN499]. Such a rule-driven and problematic understanding of the doctrine of  
precedent is in fact enshrined in the current version of Rule 976, the        
standard for publication of decisions of California courts of appeals, which  
provides that an appellate opinion may not be published unless a majority of  
the decisional bench certifies that it: 
  [E]stablishes a new rule of law, applies an existing rule to a set of facts 
significantly different from those stated in published opinions, or modifies, 
or criticizes with reasons given, an existing rule; resolves or creates an    
apparent conflict in the law; involves a legal issue of continuing public     
interest; or makes a significant contribution to legal literature by reviewing
either the development of a common law rule or the legislative or judicial    
history of a provision of a constitution, statute, or other written law. 
  (emphasis added). Earlier, the definition of precedent contained in Rule 976
had been even more limited, making publishable only an opinion that "(1)      
establishes a new rule of law or alters or modifies an existing rule, (2)     
involves a legal issue of continuing public interest, or (3) criticizes       
existing law." Biggs, supra note 245, at 1579 n.7. See Cal. R. Ct. 117, which 
had, it appears, not limited publication sufficiently.

[FN500]. Rules of Tenth Circuit, 955 F.2d 36, 38 (10th Cir. 1992)  (Holloway, 
Barrett & Baldock, JJ., concurring and dissenting).

[FN501]. Id.

[FN502]. Id. at 37.

[FN503]. Id. at 37 & n.1.

[FN504]. Id. at 37.

[FN505]. Id. at 37-38.

[FN506]. Id.

[FN507]. Id. at 38.

[FN508]. Wald, supra note 289, at 1375.

[FN509]. See, e.g., Hart v. Massanari, 266 F.3d 1155, 1177-78 (9th Cir. 2001) 
(detailing the steps necessary to craft published opinions of "binding"       
quality).

[FN510]. See Alex Kozinski & Stephen Reinhardt, Please Don't Cite This!: Why  
We Don't Allow Citation to Unpublished Opinions, Cal. Law., June 2000, at 43, 
81.

[FN511]. Hangley has made a common-sense version of this argument. See        
Hangley, supra note 144, at 673-74.

[FN512]. As Slavitt registers, "No empirical study has confirmed the claim    
that selective publication saves time." Slavitt, supra note 17, at 124; see   
also Reynolds, Evaluation, supra note 465.

[FN513]. See Hannon, supra note 21, at 210-11.

[FN514]. See Dragich, supra note 274, at 797-800.

[FN515]. Id. at 770.

[FN516]. Reynolds & Richman, Evaluation, supra note 465, at 602 tbl.10.

[FN517]. Richman & Reynolds, supra note 317, at 284 n.52.

[FN518]. Id. at 284.

[FN519]. Chief Judge Howard T. Markey, Remarks at the Seventh Annual Judicial 
Conference of the U.S. Court of Appeals for the Federal Circuit (May 24,      
1989), in 128 F.R.D. 409, 419 (1989).

[FN520]. See, e.g., Kozinski Testimony, supra note 318, at 43-44 (noting      
without critical reflection that judges on the Ninth Circuit write (only) 20  
published opinions a year). Robel argues that circuit workload does not       
correlate with judicial output of published opinions. See Robel, Practice,    
supra note 12, at 404.

[FN521]. See, e.g., Barnett, Making Decisions Disappear, supra note 208, at   
1036 ("When presented with a court of appeal opinion it considers wrong in    
result or reasoning, the supreme court can zap the opinion by way of          
depublication with a much smaller expenditure of judicial resources than would
be required to hear and decide the case and produce an opinion joined by the  
majority of the court."); Grodin, supra note 259.

[FN522]. Biggs, supra note 245, at 1582-83.

[FN523]. See Grodin, supra note 259, at 516-20, for a detailed account of the 
laborious work practices of the California Supreme Court, apparently necessary
to "keep the law clean," which nonetheless is signally silent on the processes
by which unpublication is achieved.

[FN524]. Berch, supra note 237, at 188, 194.

[FN525]. Kelso, supra note 267, at 451 & n.66.

[FN526]. Id. at 494. Less problematically it might, as Berch suggests, stop   
forum shopping where different appellate benches are divided on an issue.     
Berch, supra note 237, at 195.

[FN527]. Resnik, supra note 9, at 1475-76; see also Nestle Co. v. Chester's   
Mkt., Inc., 756 F.2d 280 (2d Cir. 1985).

[FN528]. Resnik, supra note 9. In private correspondence Professor Resnik has 
contested the view that she is "a proponent" of vacatur practice. See Letter  
from Judith Resnik, Professor, Yale Law School, to Nancy Polikoff, Professor, 
American University Washington College of Law (Dec. 23, 2003) (on file with   
author).

[FN529]. Fisch, Rewriting History, supra note 201, at 591-92, 603-06          
(summarizing the different approaches of federal courts to the public/private 
analysis prior to Bonner Mall); see id. at 606-41 (analyzing the costs of     
vacatur).

[FN530]. Resnik, supra note 9, at 1473-74, 1476-77, 1507-12.

[FN531]. Id. at 1475-77, 1512-22. Many of these practices are likewise subject
to the "secrecy" criticism, however.

[FN532]. Id. at 1476, 1489-91, 1504-07, 1522-26.

[FN533]. Id. at 1482-84, 1527.

[FN534]. Id. at 1491-1501, 1498 nn.96, 97 & 98, 1499 nn.99 & 100. However, the
first of these arguments is considerably weakened by its failure to register  
that the vast majority of judicial opinions are not published and that West   
and LEXIS actually receive only a fraction of the opinions written by state   
and federal courts. See supra Part II for a detailed account of the material  
practices of publishing opinions that are the products of "private judging."

[FN535]. Resnik, supra note 9, at 1522-31.

[FN536]. Id. at 1532.

[FN537]. Id. at 1530.

[FN538]. Id. at 1537.

[FN539]. Id. at 1538-39.

[FN540]. Id. at 1487.

[FN541]. Id. at 1500 (conceding that "[i]f Judge Finesilver's objection to    
repeat player power to control the shape of the law is well-taken, procedural 
rules other than vacatur are also in need of revision").

[FN542]. For example, Resnick's analysis contains careful and sophisticated   
attempts to problematize whether it is even possible to calculate whether     
vacatur in fact produces settlement and an exploration of the relationship    
between such a potential calculation and the tension between the public       
interest in precedent and the private interest in vacatur.

[FN543]. 510 U.S. at 40-41; see also Barnett, Making Decisions Disappear,     
supra note 208, at 1068-74.

[FN544]. Neary v. Regents of Univ. of Cal., 834 P.2d 119, 127 (Cal. 1992)     
(Kennard, J., dissenting); see also id. at 128 ("I am persuaded that the      
majority's decision will reduce the incentive for pretrial settlements."); id.
at 130 ("The Seventh Circuit, in an influential opinion by Judge Easterbrook, 
has recognized that its practice of always denying requests for stipulated    
reversal has the salutary effect of encouraging settlements before trial and  
judgment. The District of Columbia Circuit has adopted the same rule and has  
expressly endorsed Judge Easterbrook's reasoning.") (citations omitted).

[FN545]. Barnett, Making Decisions Disappear, supra note 208, at 1073 & n.221 
(establishing that a comparison of rates of settlement in a court that never  
granted vacatur and the rest of the California appellate courts indicated that
refusing vacatur did not discourage settlement, because the rate of cases     
settled in that division was double that in other California appellate        
courts).

[FN546]. Id. at 1073-74.

[FN547]. Fisch, Rewriting History, supra note 201, at 592-93.

[FN548]. Id. at 596.

[FN549]. Id. at 608.

[FN550]. Id. at 637.

[FN551]. Id. at 627-29; see also Fisch, Vanishing, supra note 18, at 337- 38  
(noting that "because the largest litigation expenses occur at the pretrial   
and trial stages, the delay in settlement until after trial is extremely      
costly").

[FN552]. Fisch, Rewriting History, supra note 201, at 639.

[FN553]. Id. at 622.

[FN554]. Barnett, Making Decisions Disappear, supra note 208, at 1075.

[FN555]. Fisch, Rewriting History, supra note 201, at 623.

[FN556]. See Slavitt, supra note 17, at 137.

[FN557]. Fisch, Vanishing, supra note 18, at 340.

[FN558]. Barnett, Anastasoff to Hart, supra note 142, at 6.

[FN559]. Robbins,supra note 164, at 1.

[FN560]. Tex. R. App. P. 47.

[FN561]. See generally Penelope Pether, Censorship, Repression or Denial?:    
Unpacking the Symptom of People v. Wu, 24 Cardozo L. Rev. 2451 (2003).

[FN562]. Barnett, The Supremes, supra note 250, at 14.

[FN563]. Barnett, Anastasoff to Hart, supra note 142, at 3 & n.11.

[FN564]. Approximately 60% of its cases were disposed of this way in the      
period 1989 until 1996, during which time Mitu Gulati and Catherine McCauliff 
undertook the study that resulted in On Not Making Law, 61 Law & Contemp.     
Probs. 157 (1998). The proportion had dropped significantly by the time their 
article was published: It dropped from 62.3% in 1996, to 52.9% in 1997, and   
32.8% in 1998, down to less than 5% in 1999. Id. at 162.

[FN565]. Barnett, Anastasoff to Hart, supra note 142, at 3-4.

[FN566]. Telephone Interview with Melissa McDonald, Staff, Subcomm. on Courts,
the Internet, and Intellectual Property of the House Comm. on the Judiciary   
(Sept. 19, 2002).

[FN567]. Unpublished Judicial Opinions: Hearing Before the Subcomm. on the    
Courts, the Internet, and Intellectual Prop. of the House Comm. on the        
Judiciary, 107th Cong. 9 (2002) [hereinafter Alito Testimony] (statement of   
Judge Samuel A. Alito, Jr., United States Court of Appeals for the Third      
Circuit).

[FN568]. Hangley, supra note 144, at 663.

[FN569]. He has warned that it would perhaps be "the best approach... not to  
test the issue by staying far clear of a confrontation between the judicial   
and legislative branches" and opined that on separation of powers grounds the 
"legislative department is incompetent to touch" the question of unpublished  
opinions. Kozinski Testimony, supra note 318, at 16.

[FN570]. Unpublished Judicial Opinions Hearing, supra note 6, at 92.

[FN571]. Id. at 63.

[FN572]. Id. at 67-69.

[FN573]. See id. at 66, for his own account of that professional history.

[FN574]. Robel, Myth, supra note 12, at 946.

[FN575]. Ronald J. Krotoszynski, Jr., The New Legal Process: Games People Play
and the Quest for Legitimate Judicial Decision Making, 77 Wash. U. L.Q. 993,  
1050 (1999).

[FN576]. Robel, Myth, supra note 12, at 941-42.

[FN577]. This finds a poignant manifestation in the recent policy decision by 
the Judicial Conference that the Federal Courts provide remote public access  
to case files in criminal as well as civil cases. See Press Release,          
Administrative Office of the U.S. Courts 2 (Sept. 23, 2003), at http://       
www.uscourts.gov/Press_Releases/jc903.pdf (last visited Apr. 11, 2004).

[FN578]. Kelso, supra note 267, at 491-92. It was apparently a very           
half-hearted suggestion, as he recommends in the same paragraph making all    
opinions "available electronically" while retaining the noncitation rule.

[FN579]. Id. (noting that "[p]ride of authorship and concerns that a published
opinion may be cited as precedent result in court of appeal judges spending   
proportionally more time editing and crafting published opinions than         
unpublished opinions. Thus, judges likely would spend more time on a published
memorandum opinion than on an unpublished memorandum opinion ....").

[FN580]. See Melissa M. Serfass & Jessie L. Cranford, Federal and State Court 
Rules Governing Publication and Citation of Opinions, 3 J. App. Prac. &       
Process 251, 258 (2001).

[FN581]. See id.

[FN582]. See id.

[FN583]. See id.

[FN584]. See id.

[FN585]. See id.

[FN586]. See Iowa R. App. P. 14(e); Iowa Sup. Ct. R. 10 (which are mutually   
contradictory).

[FN587]. See Md. R. 8-113

[FN588]. See Serfass & Cranford, supra note 580.

[FN589]. See id. at 258 n.17.

[FN590]. See id. at 258 n.18.

[FN591]. See id.

[FN592]. See also Okla. Sup. Ct. R. 1.200 (b)(6)-(8); Okla. Ct. Crim. App. R. 
3.13(A), 3.5(C)(3).

[FN593]. Serfass & Cranford, supra note 580.

[FN594]. See id. at 258.

[FN595]. See id.