Friday, October 17, 2008

Glad to see someone else has heartburn over them.

My experience with them is at the State appellate level. Over the last few decades, the State courts adopted a custom of issuing unpublished opinions, i.e., opinions that the West Reporters (the standard books you go to to find decisions) are instructed not to publish and which, even if you find one, you cannot cite as precedent. In part this was understandable. Lots of appellate decisions (esp. on the criminal side) rule on nothing interesting or noteworthy, or point out that this case is obviously governed by earlier opinions. No sense wasting paper reporting them.

But I’ve also seen some where the ruling clearly WOULD have added to or changed the law in a significant way, and which I’m convinced were unpublished simply because the court wanted to go in a way contrary to the law. So it did it, and didn’t have to worry about this decision binding the court in a later case where it did want to follow the law.