Tuesday, October 2, 2007
Professor Hillel Levin at Stanford University explores problems created by not publishing federal District Court cases, in Making the Law: Unpublication in the District Courts.
His abstract alone provides much food for thought:
"In recent years, scholars have engaged the issue of systematic unpublication of judicial opinions in the appellate courts and the problems its poses for judicial accountability and transparency. And not just scholars. Indeed, all elements of the legal profession have weighed in. Judges have issued dueling precedent on the constitutionality of unpublication and traded polemical statements on its appropriateness; and practitioners, whose voices often seem lost, or at least muted, on issues like this, are in the thick of the debate. The debate has even spurred a change in the rules of appellate procedure, albeit a relatively minor (though still highly contested) one.
"Unfortunately, amid all of this talk about unpublication on the appellate courts, the practice of unpublication in the district courts has gone essentially unnoticed.
"In this Article, I address the issue of unpublication in the district courts from a normative perspective for the first time.
"I draw from the rich parallel literature regarding appellate court publication practices, but argue that unpublication in the district court context raises an even broader set of concerns. My argument rests on two fundamental points. First, district courts play a unique institutional role in our system of adjudication, one that gives district judges exceptional power to make and shape the law. Indeed, from the perspective of a realist, district judges have even greater control over the law than do their appellate counterparts, and yet they often operate free from appellate oversight and public scrutiny. Second, in contrast to the appellate context, where even "unpublished" opinions are usually available for public review, in the district court context, "unpublished" opinions effectively disappear from the public's view. Thus, district courts, the central location of lawmaking in our system, are rendered opaque, and our district judges unaccountable.
"The consequences of this opacity and unaccountability are serious. From the perspective of the legal academic, unpublication erects serious epistemological barriers; we cannot accurately describe, let alone assess, the law as it really is.
"This, in turn, has led to an unduly formalistic and distorted account of the law and of the district courts for ourselves and our students. But the epistemological problems are not merely the concern of those of us who study and critique judicial behavior for a living; there is a deep and fundamental problem with a system that creates a body of law and norms that are unknowable to the people they govern. And, from a practical standpoint, unpublication by district courts deprives district and appellate judges, attorneys, and those who are governed by district courts, of information about the law, distorting its development. Worse, it potentially operates to disadvantage already marginalized groups and presents judges with the opportunity to manipulate the law in unprincipled ways."