Should Judges Write Unpublished Opinions?


This week’s blog post discusses both the positives and negatives of precedential value supporting unpublished opinions, the value of a dissenting opinion, and when courts decide not to issue an opinion at all. My belief is that while they may not have precedential value, unpublished and dissenting opinions serve a functional purpose in our court system as persuasive authority. Our court system is too overburdened to write an opinion for every case they encounter, and the discretion to issue an opinion is necessary for courts to be efficient. Furthermore, allowing courts to publish opinions of persuasive authority is of primary importance to the education of future lawyers and courts on how legal constructs evolve in a court’s history.

The idea of court holdings having precedent is vital to our American judiciary. The common law is founded on the notion of precedence and stare decisis. This is easily index1contrasted with the civil law, where court holdings (not including constitutional courts) have little precedential value. The civil law felt that stripping its judges of expansive interpretive discretion and making the law mostly a legislative function would keep the law mechanical. In contrast, the common law allows its judiciary much more freedom to interpret and create exceptions to statutory law. In short, in common law jurisdictions, a judge has the power to create law far superior to his civil law counterparts.

It is the idea of stare decisis that keeps our judges unified on the law-crafting front, thus giving them large discretion to craft opinions, yet at the same time constraining the judges to follow the legal thought of prior opinions. However, history shows that stare decisis is a rule easily bended by appellate courts. Different minded courts in newer cases overrule older cases constantly, mostly due to a fundamental ideological difference in how they view the law. Law is politics, and social, economic, and philosophical differences all craft a judicial opinion. Stare decisis nevertheless ensures that overturning laws on a whim of political opinion is carefully scrutinized and frowned upon.

In the case of unpublished and dissenting opinions, lacking precedential effect does not downplay the importance of each of these forms of judicial opinion. Persuasive authority is vital to the growth of legal thought.

Unpublished opinions are a creative concept. They allow an appellate court to almost experiment on applying precedent to new fact patterns without judges having to worry about the effects the opinion has compared to opinions of binding precedent. The unpublished opinion simply applies the law to a fact pattern and reaches a conclusion based in law but not creating law. This is an efficient method of judges to dispel of their caseload, yet at the same time making the court publish its legal reasoning behind its index2holding. Holding a one-judge opinion that wasn’t meant to be published as precedential value would seem to run counter to the reason unpublished opinions exist in the first place. However, the unpublished opinion should still be cited as persuasive value; the reasoning behind how one court came to a conclusion is always helpful for attorneys, as well as other courts, to have available. Even if only educational, the unpublished opinion is still an example of how a court fit a particular fact pattern of a case within legal principles.

Likewise, dissenting opinions educate us on how a court could have differing viewpoint on a case subject. The law is always expanding and evolving, and dissenting opinions play a large amount of persuasive opinion in that evolution. From simply saying “I told you so,” to crafting judicial philosophies about what the law should be, these opinions not only speak for a different view of a case, but also for the ideology behind that holding. Competing forces in the law, much like precedent, help to constrain the imagesdiscretion of judges, who don’t like being overturned or not agreed with. Referring back to our common law roots, our system is adversarial in nature. Even the judiciary is adversarial in fighting for majority votes or in deciding how narrow or expansive a holding will be. A dissenting opinion is of persuasive value because it provides a published lens into the thoughts of the minority, and allows the legal community to educate themselves on both sides of the legal issue. As attorneys, our job is to not only help our clients know what they cannot do under the law, but also to instruct them on how to use the law to their advantage. Persuasive legal opinions, while not directly binding on future cases, still have a vital educational role to play in the creation and evolution of new legal philosophies.

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