NCPA - National Center for Policy Analysis

Unpublished Judicial Decisions Are Dangerous -- And Increasing

October 20, 2000

Increasingly, federal appeals judges are handing down decisions that consist of only one word -- "affirmed," meaning that a lower court's decision is left standing. But that means there is no explanation of the decision, and almost no possibility of further appeal.

The judges blame the oversight on overwork.

  • Last year, federal appeals judges disposed of 79 percent of the 16,819 cases they decided by issuing so-called unpublished decisions -- up from 37 percent in 1977.
  • Over 7 percent of the unpublished decisions consisted of a single word.
  • An unpublished decision does not establish precedent -- and the Supreme Court almost never accepts cases for review when there is no published opinion to look at.
  • Judicial decisions are intended not just to resolve particular disputes, but also to tell Americans what the law is.

One federal appeals court has declared war on the practice. In August, a three-judge panel in St. Louis branded unpublished decisions unconstitutional. Though that decision is itself a precedent only in the 8th Circuit, litigants in other federal courts are starting to cite it.

The Supreme Court will likely end up ruling on the matter.

Source: Brigid McMenamin, "Justice in the Dark," Forbes, October 30, 2000.


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