For many years librarians were haunted by researchers seeking judicial opinions or court cases poorly referenced in media or family lore. Most of these opinions were impossible to find - unpublished decisions known only to the participants and obtainable only by visits to the courthouse. Academic and bar association libraries could, in some instances, subscribe to an appellate courts opinion service which provided true “slip opinions” - legal size sheets in two colors, one color for those granted publication and another color for the never-to-be published opinions.
Unpublished opinions became more accessible as Westlaw™ and LexisNexis™ occasionally included decisions obtained directly from the court which turned out to be unreported in print sources. Loose-leaf services from BNA, CCH, Mealeys and Andrews began including unreported decisions dealing with the topics specific to their particular publications. In Michigan and several other states, Lawyers Weekly began alerting practitioners to unpublished decisions with descriptive squibs as well as providing fee based document delivery of the full text of these opinions.
Now, however, we face a veritable avalanche of unpublished opinions from court sites on the Web.Check Zimmerman's Research Guide, Unreported Decisions, for some quick tips on locating unpublished decisions. While locating such opinions is no longer nearly impossible but likely probable, what do we make of these unpublished opinions? Are they precedential, persuasive or useless?A recent 8th Circuit opinion, Anastasoff v. United States 223 F. 3rd 898 (8th Cir. 2000) held that Article III of the Constitution mandates precedential value to appellate decisions, published or not. Although the opinion has since been vacated 235 F. 3rd 1054 (8th Cir. 2000); it raised a question that technology had been forcing forward for some time.
Information and legal professionals alike have provided commentary and insight. LexisNexis Information Professional Update's Thrifty Searcher addresses the treatment of unpublished and unreported decisions in its March 2001 issue and imparts the following advice: check both the local court rules and particular judge to determine whether unpublished opinions may be cited before that court. Bob Berring shares his thoughts in An Unprecedented Decision 3 (No. 1) Law Librarians in the New Millennium 3.
The Anastasoff case and the increasing availability of unpublished opinions in electronic format have been the subject of several very interesting articles. Eron Berg's Unpublished Decisions: Routine Cases or Shadow Precedent in the Washington State Bar Newsholds particular interest for Washington state researchers as well as containing an excellent discussion and analysis of the topic in general. Other articles of interest include Aaron Larson’s Eighth Circuit Holds That Unpublished Opinions have Binding Precedential Value and The Uncertain Status of Unpublished Opinions by John Borger and Chad Oldfather in Bench & Bar of Minnesota. David Fine’s Keeping Mum Kills Precedents (National Law Journal, February 15, 2001) and other news stories from American Lawyer Publications are available at http://www.law.com by searching "Anastasoff", limited to news content.
In keeping with the spirit of this debate, there is a new ALR 5th annotation on this subject, Precedential Effect of Unpublished Opinions (2000 ALR 5th 17, 2000 WL 1750906) available only on-line with the caveat, “This annotation has not been released for publication in ALR and is subject to revision or withdrawal.” The advantage of the ALR annotation lies in its coverage of state cases, listed by jurisdiction, that discuss the question.The annotation does not describe the status of whether an unpublished case can be cited within a particular jurisdiction. That question may be addressed by court rule or statute within the jurisdiction (remember the very helpful LLRX.com Court Rules, Forms and Dockets.) Publication rules of federal and state courts are also provided at NonPublication.com. State bar associations or courts may address these publication issues in policy statements or studies such as Public Policy Positions of the State Bar of Wisconsin or the [California] Appellate Process Task Force's recently published A White Paper on Unpublished Opinions of the Court of Appeal.
Electronic availability of unpublished or unreported decisions insures that their use in research, as information or precedent, will continue. Whether precedential, persuasive or useless depends upon the jurisdiction and publication rules of that jurisdiction. Just remember, that those rules, they may be a changing.