Judicial Triage: Reflections on the Debate over Unpublished Opinions

• Published in: Washington and Lee law review Vol. 62; no. 4; p. 1667
• Main Authors: Vladeck, David C, Gulati, Mitu
• Format: Journal Article
• Language: English
• Published: Lexington Washington & Lee University, School of Law 01.10.2005
• Subjects: Accountability; Attorneys; Common law; Courts of appeals; Judicial process; Transparency; Workloads; United States > US
• ISSN: 0043-0463; 1942-6658

The ongoing effort by the Advisory Committee on Appellate Rules to promulgate a rule to forbid circuit courts from prohibiting the citation of unpublished opinions has unleashed a charged debate over the publication practices of our federal courts of appeals. Embedded in the controversy over publication practices is a problem of far greater dimension: the workload burdens on the federal appellate courts have grown to the point where something must be done or else the published opinion will become a statistical anomaly. That result would serve no one. Nonetheless, the legal establishment focuses on the publication question and leaves unattended the more threatening problem of caseload overload. Federal courts and civil procedure courses seldom make mention of the two track system of appellate justice in our federal courts, and most academics are barely aware (if that) that this problem exists. And Congress, almost predictably, has responded by failing to provide additional resources to the judiciary, notwithstanding the clear resource deficit facing the courts. Instead, Congress continues blindly to place new burdens on the courts.139 Perhaps it is the duty of all symposia participants to plant the seeds of a return invitation. But we believe that until solutions are found for the resource burdens plaguing our appellate courts, debates over publication practices will persist and become even more intense. It is time to address the root cause of the problem and not just one symptom.