Tuesday, March 16, 2010
Legal writing prof tells online ABA Journal judges shouldn't withhold unpublished opinions from Wexis
Nova Southeastern's legal writing prof David Cleveland was quoted extensively in last week's online ABA Journal in an article entitled "A Judge's Unusual Request: Don't Print This in Westlaw or Lexis" discussing one federal judge's practice of restrictively endorsing his unpublished opinions so Wexis won't include them in their databases.
Unpublished opinions are withheld from the official reports and traditionally treated as not having any precedential effect. But [Los Angeles federal district court Judge Howard] Matz's request referencing databases is out of the ordinary, according to David Cleveland, a law professor at Nova Southeastern University’s Shepard Broad Law Center.
Cleveland says the trend is toward greater openness, publication and citation of unpublished opinions.
He points out that the Federal Rules of Appellate Procedure were recently amended to bar courts from prohibiting or restricting citation to newly issued unpublished opinions. He also notes the E-Government Act of 2002 requiring courts to make available all written opinions on their websites.
Since others can still disseminate Matz’s orders, the request is impractical, Cleveland says. It’s also inappropriate to try to create a secret body of law, he says.
Cleveland argues that litigants ought to be able to point out a court’s prior decisions even if they aren’t binding precedent. He sees a potential due process or equal protection violation if litigants aren’t allowed to ask a court to act today as it did in the past or to explain the distinction.
Cleveland doubts that Westlaw or Lexis will comply with the judge’s request. He appears to be right. The ABA Journal turned up 15 cases in which Westlaw apparently ignored Matz and published his unpublished orders in its electronic database. In each case, Matz’s unfulfilled request was printed at the bottom of the document.
You can read the rest here.
Hat tip to Robb Gregg.
I am the scholarship dude.