From Volume 76, Number 4 (May 2003)
United States courts of appeals and a number of state appellate courts permit their judicial panels to designate certain decisions as unworthy of publication and as “non-precedential” even though an opinion has been written that justifies them. The designation is based on an assessment by the decisional panel that the resolution of the appealed issues has not added new law to the jurisdiction’s already existing body of law. Judge Richard Posner has described this criterion as “imprecise and nondirective.” An empirical study “casts serious doubt on whether the official criteria for publication of opinions provide a meaningful guide to the judges.” Once a decision-with-opinion receives the “non-precedential” label, it may not be used as authority in future cases by any of the jurisdiction’s courts, and lawyers are prohibited from citing it in their briefs and oral arguments. These opinions were once called “unpublished” and were distributed only to the parties to the appeal, but they are now widely available through online databases and through the Federal Appendix, a new West publication. This Article uses the noun “non-precedent” and the adjective “non-precedential” to refer to these opinions.
The selective publication policy evolved in the precomputer era when courts and judicial councils worried about their physical ability to publish hard copies of the ever-increasing number of court opinions, the costs to the legal community of acquiring and storing voluminous law reporters, and overwhelming law-finding devices.