Washington Law Review Publishes Article on Unpublished Federal Appellate Opinions

The Washington Law Review has just published an article by Prof. Sarah Ricks entitled, The Perils of Unpublished Non-precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Washington Law Review 217 (2006):

About 80% of federal appellate decisions are non-precedential. The Article examines the practical consequences for district courts and litigants confronting inconsistent appellate opinions issued by the same federal circuit. Specifically, this is a case study comparing the divergent binding and non-precedential opinions applying one frequently invoked constitutional theory within the U.S. Court of Appeals for the Third Circuit, the “state-created danger” theory of substantive due process.

The comparison demonstrates that the risks of non-precedential opinions are real. During the six-year interval between binding state-created danger decisions, the Third Circuit created inconsistent non-precedential opinions on the identical legal theory. Doctrinal divergence between the Third Circuit’s binding and non-precedential opinions has undermined the predictive value of precedential state-created danger decisions, creating an obstacle to settlement at both the trial and appellate levels. In turn, district courts’ unpredictable application of the non-precedential opinions has undermined the critical appellate functions of ensuring that like cases are treated alike, that judicial decisions are not arbitrary, and that legal issues resolved at the appellate level need not be relitigated before the district courts.

The practice of issuing non-precedential opinions is justified on efficiency grounds, as a mechanism for overburdened appellate courts to manage their dockets. But doctrinal inconsistency between the Third Circuit’s precedential and non-precedential opinions undercuts the efficiency rationale because doctrinal divergences may have led plaintiffs and defendants to value cases differently­potentially leading to more litigation, fewer settlements, and additional need for judicial decision-making.

This Article proposes several reforms to reduce doctrinal inconsistency between precedential and non-precedential opinions. Because an appellate court should weigh the same considerations in making each of its publication decisions, the Third Circuit should replace its amorphous publication guideline with specific criteria. The Article concludes by suggesting that, consistent with the common law tradition of empowering the applying court to assess the persuasive value of a judicial decision, the Third Circuit should no longer refuse to cite its own non-precedential opinions, and should follow several circuits in expressly according persuasive value to its non-precedential opinions.