Friday, June 26, 2009
Scholarship alert: "Practitioners Beware: Under Amended TRAP 47, "Unpublished" Memorandum Opinions in Civil Cases are Binding and Research on Westlaw and Lexis is a Necessity"
This article comes to us from our good buddy Professor Andrew Solomon at South Texas College of Law. Practitioners Beware: Under Amended TRAP 47, "Unpublished" Memorandum Opinions in Civil Cases are Binding and Research on Westlaw and Lexis is a Necessity can be found at 40 St. Mary's L.J. 693-749 (2009). Here's an excerpt from the abstract:
... Comment to 2002 change: The rule is substantively changed to discontinue the use of the "do not publish" designation in civil cases, to require that all opinions of the court of appeals be made available to public reporting services, and to remove prospectively any prohibition against the citation of opinions as authority in civil cases. ... To combat this problem, this Article recommends one of three changes: (1) making all opinions readily available on a sophisticated, widely available, and unified website for the Texas courts of appeals; (2) requesting the West Publishing Company publish memorandum opinions issued in civil cases since 2003 in the South Western Reporter or a specialty reporter devoted to memorandum opinions, thereby making these memorandum opinions readily available to attorneys without access to Westlaw or Lexis; or (3) returning memorandum opinions in civil cases to their non-precedential status.
Despite this clear guidance, the amendment failed to address three significant issues related to the issuance, publication and availability, and precedential value of memorandum opinions in civil cases: (1) The issuance question: Would memorandum opinions under the new rule be issued in the same types of cases as unpublished opinions under the old rule?
I am the scholarship dude.