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A Few Words on Unpublished Opinions

    Some federal appellate opinions are unpublished.  This does not mean, in general, that the opinions are unavailable.  They do not appear in the Federal Reporter, the series of bound volumes issued by West Publishing Company in which all precedential federal appellate opinions are published.  But unpublished opinions issued after January 1, 2001, do now appear in a separate West publication known as the Federal Appendix, and even unpublished decisions issued before that date can be found on Lexis or Westlaw.  Most circuit websites also now include unpublished opinions as well as published ones.  Indeed, unpublished decisions are now available from so many sources that some circuits have rejected "unpublished" as a misnomer, preferring to refer instead (e.g.) to "nonprecedential" decisions.  This is a departure from hallowed legal usage, but perhaps the occasional legal neologism must be permitted when it serves the interests of accuracy.  Whatever terminology is used, the real significance of an opinion's publication status has to do with its precedential weight.  Unpublished opinions are not binding, in the sense that courts within the circuit need not follow them in subsequent decisions.  Indeed, the procedural rules in most circuits formerly forbade, or at least disfavored, the very citation of such opinions.  Under Fed. R. App. P. 32.1, however, the circuits may not bar the citation of unpublished decisions issued on or after January 1, 2007.  Criteria for publication vary between circuits, but in broad outline, appellate opinions are supposed to be published if they announce a new legal principle or interpretation, or if their significance is otherwise thought to extend beyond the facts of the particular case.

    The existence of a separate and inferior class of judicial opinion, to which subsequent courts need pay no mind, is justly controversial in a country whose judicial system is founded on notions of stare decisis.  The longstanding controversy over unpublished opinions cannot be resolved here, but it can be noted that in general, the reasoning in unpublished opinions is not subsequently tested in the crucible of official legal discourse.  There is an element of irony, therefore, when an unpublished opinion strikes expert testimony for want of peer review and publication.

    Roughly forty percent of federal appellate Daubert decisions are unpublished.  Here are the current publication rates, by circuit, for Daubert decisions issued since January 1, 2000:

 

First Circuit:   .898     (44/49)
Second Circuit:    .397     (24/59)
Third Circuit: .410     (25/61)
Fourth Circuit: .203     (16/79)
Fifth Circuit: .707     (41/59)
Sixth Circuit: .457     (43/94)
Seventh Circuit: .888     (79/89)
Eighth Circuit: .927     (89/96)
Ninth Circuit: .375     (51/136)
Tenth Circuit: .527     (49/93)
Eleventh Circuit: .822     (37/45)
D.C. Circuit: .833     (5/6)
Federal Circuit: .750     (15/20)
Total: .585     (518/886)
 

    Obviously, uncitable opinions are not much use in resolving later controversies.  Repeat players should be conscious of local circuit rules that may permit litigants, or other persons, to request an opinion's publication.  Typically, such requests, if permitted at all, must be made within a short time from the opinion's issuance.