The Precedential Value of Unpublished Judicial Opinions 39 Mercer Law Review 1987-1988

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39 Mercer L. Rev. 477 (1987-1988)
The Precedential Value of Unpublished Judicial Opinions

handle is hein.journals/mercer39 and id is 487 raw text is: The Precedential Value of
Unpublished Judicial Opinionst
by George M. Weaver*
I. INTRODUCTION
The purposes of this Article are to examine the role of unpublished
judicial decisions in the law and to determine what part of the law is
formed by such opinions. This Article will not address the desirability of
limited publication.' It will be shown that unpublished opinions have the
same dispute-settling capacity as published opinions. Unpublished opin-
ions should not, however, be regarded as precedent. Nevertheless, they
should be citable for other purposes.
The work load of American courts has increased dramatically in recent
years. The statistics are familiar. During the year ending June 30, 1980,
plaintiffs filed 188,487 cases in the United States district courts. By the
year ending June 30, 1985, the number of cases filed had grown to
299,164. In the United States courts of appeals, the number of appeals
during the same period increased from 23,200 to 33,360.2 The increase in
t Copyright 0 1986 by George M: Weaver.
* Partner in the firm of England & Weaver, Atlanta, Georgia. (B.A., 1972); (J.D., 1975).
Member, State Bar of Georgia.
1. Considerable debate has occurred over the desirability of unpublished opinions. See
generally W. Reynolds, Judicial Process in a Nutshell § 3.9 (1980); Reynolds & Richman,
The Non-Precedential Precedent -Limited Publication and No-Citation Rules in the
United States Courts of Appeals, 78 COLUM. L. Rav. 1167 (1978); Render, On Unpublished
Opinions, 73 Ky. L.J, 145, 152-55 (1984-85). One primary concern is that nonpublication
might become a means of concealing questionable dispositions. Indeed, inconsistencies have
been noted between unpublished and published decisions. E.g., Krolick Contracting Corp. v.
Benefits Rev. Bd., 558 F.2d 685, 689 (3d Cir. 1977) (acknowledging inconsistency); Jones v.
Superintendent, Va. State Farm, 465 F.2d 1091, 1093 (4th Cir. 1972) (acknowledging incon-
sistency). See also Render, supra, at 155-61; Reynolds & Richman, supra, at 1192-93.
2. Director of the Administrative Office of the United States Courts, Federal Court Man-
agement Statistics (1985). See also Chanin, A Survey of the Writing and Publication of
Opinions in Federal and State Appellate Courts, 67 L Lim J. 362 (1974); National Center
for State Courts, State Appellate Caseload Growth 2 (Oct. 1983) (cited in Overton, A Pre-