Sep
3Federal Court of Appeals Still Issues Unpublished Appellate Opinions

In the August 24, 2009 issue of the National Journal, Aaron S. Bayer reports on the history of unpublished federal appellate cases. The article notes that there has been general criticism of the practice since at least 1985, when Supreme Court Justice Steven's dissent in County of Los Angeles v. Kling, 474 U.S. 936, 938 (1985), and compares the practice "like the decision to promulgate a rule spawning a body of secret law - plainly wrong."

The article states that according to the Judicial Business of the United States Courts:  Annual Report of the Director, tbl. S-3, between 2000 and 2008 the federal courts have not published more than 81% of all appellate opinions issued.  The number is not getting smaller.  In 2008 the same courts failed to publish more than 81.8% of all appellate opinions issued. See Annual Report of the Director, tbl. S-3 (2008).

Bayer's article is available through subscriptions to the National Law Journal purchased by the Georgetown Law Library.  Read it either in print or online versions.