Restrictions on Publication and Citation of Judicial Opinions: A Reassessment

In response to the “crisis of volume,” state and federal appellate courts have been restricting the opinions they write to those opinions which will: (1) establish a new. rule of law or expand, alter, or modify an existing rule; (2) involve a legal issue of continuing public interest; (3) criticize existing law; or (4) resolve a conflict of authority. All other opinions are limited to brief statements of the reasons for the decision, go unpublished, and generally carry a prohibition against their being cited as precedent. Recently, critics have alleged a number of faults with this practice, including the supposed loss of judicial accountability, the difficulties of appellate review, the problems of predicting precedential value, the inequalities of parties’ access to unpublished opinions, and the illusory nature of the claims of judicial and litigant economy. In this Article, Professor Martineau demonstrates that these criticisms are based on false premises and ignore the realities of legal research and the appellate decision making process. Professor Martineau writes that limited publication and citation rules are an essential way to respond to increasing caseloads, so long as: (1) they are crafted and administered to ensure that the criteria for publication are maintained with several checks on judges’ discretion not to publish and (2) the prohibitions against citing unpublished opinions be enforced strictly through good example, sanctions, and structural mechanisms intended to make the opinions available less readily to people other than the immediate parties.