56 STNLR 1435 56 Stan. L. Rev. 1435 (Cite as: 56 Stan. L. Rev. 1435) 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to find; it limits or destroys the precedential value of the opinion; and in most jurisdictions, citation to an unpublished opinion in documents filed in court or in argument is either banned or severely limited.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