Wednesday, April 20, 2016

The Limited Utility of Unpublished Opinions

In Garcia v. Commissioner, Judge Kozinski quipped to the hapless attorney, "I know how fond you are of unpublished dispositions."  In the published opinion, the court noted the prior unpublished opinion:
We recognize that our holding here is contrary to Andrade v. Commissioner of Social Security, 474 Fed.Appx. 642 (9th Cir.2012). We are not bound by our earlier decision. See 9th Cir. R. 36-3(a).
Judges Kozinski and Reinhardt addressed the problem of unpublished opinions in a piece originally published in the California Lawyer.  Please Don't Cite This.   Judge Kozinski wrote a history lesson on the advent of precedent in Hart v. Massanari.  Yep, same hapless attorney and the quip in Garcia reminded at least two people in the room about Hart.

But why the fuss about unpublished dispositions?  Because they lack the in depth discussion of the facts and the legal nuances.  The stuff that calls for the attorney to distinguish what happened before to what the court now considers -- legally and factually.  The law is contextual.  Using unpublished memoranda as the best persuasive argument is just poor lawyering.

So what is the value of the unpublished memorandum?  The memoranda give the legal kernels that point to the core of the issue.  Some of the facts might be there but the disposition is typically way too short to resolve the issue.  Go back to Please Don't Cite This and the decision in Hart to understand the reason why the courts don't have time for a precedential decision in every case.

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