August 10, 2009
Cleveland's Unpublished Opinions Redux
LLB readers may recall the interview I conducted with David Cleveland (Nova Southeastern) last October about his two now published articles on the history, value, and future of unpublished opinions in the federal courts, Overturning the Last Stone, The Final Step in Returning Precedential Status to All Opinions, 10 J.App.Prac. & Process 61 (2009) and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. 685 (2009). Since then Cleveland has been working on two more articles on the subject of unpublished opinions. They are available on SSRN as Working Papers. I highly recommend both articles to law librarians. Cleveland's growing body of scholarship underscores just how critically important the issue of unpublished opinions is.
Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations examines a specific area of the law in which the denial of unpublished opinions harms the substantive law. The qualified immunity defense allows government officials immunity to civil rights claims unless the right they allegedly violated was "clearly established." The federal circuits vary on whether unpublished opinions may be used to determine clearly established law. This article argues that unpublished opinions are ideal sources for determining what law is clearly established. It proposes a resolution to this problematic circuit split through jurisprudential or rulemaking means. Opinions that are issued as unpublished are by definition clearly established law; opinions that make new law or expand or contract existing law must be published under the federal circuit rules. Denying precedential status to unpublished opinions has relegated these opinions to a second class status, which is unjustified and unconstitutional, but also obfuscates their inherent suitability to demonstrate clearly established law.
The second working paper is called: Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1. It examines the three attributes of federal unpublished opinions: non-published, non-citable, and non-precedential. It analyzes the federal rules on these three issues and finds that, despite attempts to create uniform rules, the federal circuits vary widely in how they decide what to publish, what they permit to be cited, and what precedential value they give these decisions. The most fundamental jurisprudential question: "what is law?" varies throughout the supposedly uniform federal system. The article proposes rule changes to make these rules uniform.
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