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Valparaiso Univ. Law School

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Sunday, October 9, 2005

The Crime of Unpublishment

David_s_caudill One of the great threats to contract law in the 21st century (at least in the opinion of one of your editors) is the extensive practice of issuing non-precedential decisions in cases.  Anecdotal evidence from California suggests that at least eight out of ten contract cases are disposed of in unpublished (and un-cite-able) opinions.

Villanova's David S. Caudill (left) explores the ethical issues involved in courts disposing of cases without feeling obliged to conform future decisions to them, in Parades of Horribles, Circles of Hell: Ethical Dimensions of the Publication ControversyHere’s the abstract:

This article examines the ethical dimensions of the controversy over no-citation rules and current publication practices. In the literature concerning that controversy, ethical concerns are often mentioned, but usually in tandem with other concerns. Professor Caudill isolates and categorizes the different types of ethical dilemmas, and demonstrates that at different levels of the controversy, the ethical concerns are different. He identifies three levels--the controversy over no-citation rules, the broader controversy over publication practices, and the even broader controversy over privatization of law (the so-called disappearing trial, ADR, and the end of law as we know it).

Meanwhile, an examination of what would happen if courts did allow citation of these unmentionable cases is The Dog that did not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders, by Stephen Barnett (UC-Berkeley), forthcoming in the Washington and Lee Law Review.

[Frank Snyder]

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