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97 Geo. L.J. 621 (2008-2009)
Unpublished Opinions: A Convenient Means to an Unconstitutional End

handle is hein.journals/glj97 and id is 625 raw text is: Unpublished Opinions: A Convenient Means to an Unconstitutional End ERICA S. WEISGERBER* TABLE OF CONTENTS INTRODUCTION .............................................. 622 I. UNPUBLISHED OPINIONS: WHAT ARE THEY AND WHY ARE THEY USED? ................................................ 623 II. THE PROBLEM OF UNPUBLISHED OPINIONS COMES TO THE FORE .... 627 A. PRE-RULE 32.1 CIRCUIT SPLIT ... ......................... 627 B. THE ADOPTED SOLUTION, FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A SMALL STEP IN THE RIGHT DIRECTION ...... 631 III. THE TREATMENT OF UNPUBLISHED OPINIONS AS NON-BINDING PRECEDENT IS UNCONSTITUTIONAL .......................... 632 A. THE ROLE OF PRECEDENT IN THE AMERICAN LEGAL SYSTEM ..... 633 1. The Framers Envisioned Binding Precedent as a Limitation on the Judicial Power .................... 633 2. Precedent Has Become Firmly Entrenched in the American Legal System Since the Framing ........... 638 B. UNPUBLISHED OPINIONS DO NOT ACCORD PROPER RESPECT FOR PRECEDENT AS REQUIRED BY THE CONSTITUTION AND THE HISTORY OF THE U.S. LEGAL SYSTEM ...................... 642 1. In Practice, Unpublished Opinions Have Not Merely Applied Well-Settled Law to Fact ................... 642 2. Individual Judges Should Not Determine the Precedential Status of Their Own Opinions .......... 645 3. Judges Should Not Be Able To Depart from the Holdings or Rules of Prior Opinions Without Explanation or Justification ....................... 647 * Georgetown University Law Center, J.D. 2008; Georgetown University, B.A. 2005. © 2008, Erica S. Weisgerber. Thank you to Professor Glen D. Nager for his continuous assistance and guidance on this Note. Thank you also to Professor Viet D. Dinh for his help in conceiving the initial direction and scope of this Note. Thank you to Noah Stern and Emil Bove for their help along the way. Special thanks to the members of The Georgetown Law Journal, in particular Mike Stoll and Brandon Smith.