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Judge Richard Arnold — the 8th Circuit’s resident restless mind — has gone hunting. In a decision last month, Arnold aimed, fired, and bagged himself a constitutional violation. The trophy is that part of the 8th Circuit’s local rules that states: “Unpublished opinions are not precedent and parties generally should not cite them.” Writing for a three — judge panel in Anastasoff v. United States, Arnold concludes that the practice of denying precedential force to unpublished opinions “is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond the ‘judicial.’ ” Arnold’s reasoning, in short, is that the Constitution limits the power of judges by forcing them to treat all their prior opinions as precedent. It’s what the Framers intended, Arnold says, and it’s the law. Constitutional buckshot — very effective. But it may be that the downed trophy is only playing dead. As the basis for his decision, Arnold cites this part of Article III: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” But he should have read further. A couple of sentences later, Article III continues: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” The key word is equity. Lawyers don’t know much about equity these days (other than in profit-sharing plans). But according to Black’s, equity is “justice administered according to fairness as contrasted with the strictly formulated rules of common law.” Equity courts developed in England during the Middle Ages as a means for parties to escape common law courts that had become rigid with precedent. The chancellors who ran equity courts removed cases from common law courts and then decided those cases as they wished. It was a system of justice that, in theory, focused solely on doing right between the parties. And as part of that goal, at least in the beginning, equity courts intentionally didn’t follow precedent. By the time that Sir William Blackstone wrote his famous Commentaries on the Laws of England in the 1700s, he noted that equity courts in practice had become as bound up in precedent and procedure as common law courts. But he still knew the fundamental nature of equity. About that, he wrote that equity was “founded on no settled principles, as being never designed, and therefore never used, for precedents.” Blackstone’s understanding of the lack of precedent in equity is crucial, for two reasons. First, Judge Arnold quotes Blackstone speaking to the importance of precedent. But here’s a counterexample of Blackstone discussing the importance of equity without precedent. Second, people generally quote Blackstone with regard to the Constitution because his treatise was commonly available to colonial lawyers. What he thought about law, the logic goes, the Framers thought. When they wrote Article III, they included equity within the courts’ powers. And if Blackstone knew that equity in theory did not concern itself with precedent, they knew it too. So much for the unambiguous nature of original intent. Judge Arnold, though, does not rely solely on original intent. He also talks about the policy implications of denying unpublished opinions the force of precedent. In a footnote, he states that the use of precedent promotes “fundamental fairness,” by guaranteeing that like cases be treated alike, and that it promotes predictability. Extending this theme, whatever archaic understanding that the Framers might have had about equity and the lack of precedent, we now know better. Or do we? According to the Administrative Office of the U.S. Courts, for the 12-month period ending Sept. 30, 1999, the Supreme Court denied 4,977 petitions for certiorari (and granted 137). Although a cert denial is a decision by the Supreme Court to let a lower court opinion stand, it has no precedential effect within the Court (except, of course, between the parties). Now, an argument might be made that the Supreme Court only denies cert on those cases raising legal issues that it has already clearly settled, so there’s no problem with the lack of precedent. There are two responses. First, the same reasoning should apply to the circuit courts. Common sense says that the vast majority of cases handled by the appellate courts in unpublished decisions are also those where the law is already settled. Second, and possibly more important, it’s not just the easy cases that the Supreme Court punts by denying cert; sometimes it’s the hard ones. Consider O’Callaghan v. State, a 1996 case from the Supreme Court of Alaska dealing with the constitutionality of a state statute requiring that primaries be open to members of all political parties. The majority of the state supreme court held that the law did not violate the First Amendment. The Republican Party sought certiorari in the U.S. Supreme Court. Denied. But not because the case law was settled. How do I know this? Because, in California Democratic Party v. Jones this past term, the Supreme Court not only granted cert on a case that dealt with the same issue, but overturned California’s similar open-primary law as unconstitutional. Why did the Supreme Court take the issue in 2000 but not before? Who knows? And that’s the point. By denying cert, the Supreme Court is able to decide cases — complicated, hard cases on issues where the law is not clearly settled — and yet deny those decisions any force of precedent. If the Supreme Court can do it, why not the circuit courts? Because, one might say (as Judge Arnold does), modern judging requires fairness and consistency. And (as he does not say) two wrongs don’t make a right. To which I respond, correct. Arnold goes out of his way to say that he does not want to prevent courts from issuing unpublished opinions, but that he only wants to ensure that such opinions have the force of precedent. Never mind that the circuit courts dispose of 78 percent of their cases through unpublished opinions. Never mind that only lawyers with deep resources will be able to ferret out these unpublished but now precedential opinions from the dusty back rooms of the courts. Arnold has got me. I agree. If a court writes an opinion, complete with reasoning and citing to precedent, the opinion should count as precedent. Fundamental fairness and predictability über alles. I’m with you, Judge Arnold. Kind of. The problem is, Arnold fails to distinguish in his opinion between two different types of unpublished decisions. Some really are secret law — complete decisions that just never made it to the big league of the Federal Reporter. Those seem to be what Arnold has in mind. But what about the other types of opinions, those called summary affirmances (and, sometimes, summary reversals)? Opinions that, even in the official copy filed away in the clerk’s office, have no reasoning. How can we rely on those? It’s not just an opinion’s holding that’s vital to precedent, but its reasoning. Without reasoning, parties will cite to these opinions in vain. How will new litigants know if a particular summary disposal was decided on the merits, because of a procedural issue, or because the judges were tired and wanted to go home? In short, just as with cert denials, the parties won’t. So, let’s say that we go with Judge Arnold. Let’s make all opinions carry the force of precedent. And the result will be not that 78 percent of the cases from the circuit courts are unpublished, but that, instead, 75 percent (or so) of them get dealt with summarily, bereft of any reasoning whatsoever. Precedent? Sure. Now try to use it. And in the woods, a buck slowly rises from the ground and slips back among the trees. Evan P. Schultz is associate opinion editor at Legal Times. He was involved in the O’Callahan case while clerking for the Supreme Court of Alaska.

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