Published Versus Unpublished Opinions in Federal Circuits. Are Courts Prejudging Litigants?

LIT COMMENTARY

Feb 6, 2021

This article interested LIT due to the subject matter and the fact the author was a clerk for US District Judge Alvarez and Court of Appeals for the Fifth Circuit Judge Jennifer Walker Elrod. The following paper was written over a decade ago. It talks about “precendent-stripping”, which is concerned with the argument about published versus unpublished opinions issued by the federal circuit courts.

The paper highlights the fact that judges get to decide peoples appeals, not always on the merits, but rather  for personal, panel or political reasons (as courts are certainly not non-partisan).

The introduction of unpublished opinions in the 60’s was to help the courts who were apparently struggling with the increased volume of appeals. Today, the appellate judges continue to rely on the increased volume of appeals to attribute for their shortness of time for review of all appeals.

LIT disagrees with this notion.

If you take recently appointed and one of the youngest appointed federal judges, Andrew Oldham of the Court of Appeals for the Fifth Circuit, prior to Covid-19, LIT was amazed this rookie circuit judge found time to  gallivant all over the country to Federalist Society meetings. Our answer was found in a video posted online and included in this article. Oldham relies upon his clerks and staff attorneys’ to do the work. His words contradict the more senior judges in the circuit who claim they are the busiest court in the country (the Eleventh Circuit also claiming to be in pole position).

What LIT also discovered is Judge Stephen Higginson of the Court of Appeals for the Fifth Circuit stating on the record that appeals which are not granted oral argument do not get the same review by the panel as those which are granted oral argument and that the decision is usually decided by email.

Then, when you review the 11th Circuit, they use ‘judges sitting by designation’ in the majority of their opinions and also heavily rely upon staff attorneys to write opinions [“Further, the complaint alleges that “[i]t has been clearly established that appellate court judges in the Eleventh Circuit routinely do not read pro se briefs, but allow staff attorneys to make `summaries’ for them instead.”].

The sitting by designation only started to change in 2021 when LIT highlighted this fact to the court and public. The judges at the 11th Circuit, like Jill Pryor, have burgeoning personal projects – in Pryor’s case real estate interests that would keep any person occupied full time, but yet she held down a full docket as an active circuit judge. (The real estate would subsequently be liquidated due to her tax case issues).

In summary, judges are not constrained by the number of appeals before them. They are constrained by their own personal interests, which, from review, appear to take as much of their time as a sitting judge should require.

In relation to “unpublished” opinions, LIT has detailed the appeal in case 19-13015 and the shenanigans, lies and whiteout – unpublished – opinion in that appeal. An appeal which would require 8 active judges and a chief judge to attempt to dispose of, but will be kept firmly in the public and government eye moving forward.

This confirms the statement of judges below, for example, Patricia Wald, former Chief Judge of the D.C. Circuit:

“We do occasionally sweep troublesome issues un­der the rug ….”

This is very commonplace today and LIT reiterates, until such times as judges are no longer allowed to judge themselves, life tenures are repealed and there is an ombudsman or similar in place to control the courts, then judges will continue to have the opportunity to violate their oaths and the civil and constitutional rights of litigants before them.

The author and former Judge Elrod clerk mirrors Elrods’ reliance upon Federalist 78 and that the circuit court is the ‘least dangerous’ branch. LIT disagrees. For 99% of cases, the Appellate Circuit Courts are holders of the sword, as only a hundred or so cases are heard annually by the US Supreme Court.

As a case study example, if you look at the financial crisis of 2008, the US Supreme Court has failed the people by not granting a single foreclosure case by homeowners. Why? Because the banks, Wall St and the Government are one. The banks were too big to fail, so the people had to become the scapegoats. Then we have the Federal courts which allowed so many appeals to be removed from state court to federal court – in error – in order that they could wield the executioners sword in favor of the banks, who – for example – have never lost a case at the 5th Circuit to this very day – despite the banks paying billions in fines for predatory lending and similar gross acts against homeowners.

Tens of millions of evictions took place and the banks bought up these homes for cents on the dollar, created REITs and now rent back to citizens at extortionate rates. We now have a housing crisis and an affordability issue for ‘the average citizen’. On top of that the current pandemic is about to open up another tsunami of foreclosures.

Federal courts interfered in a state court issue – property – in order to rewrite property law and new ‘published and precedential‘ opinions to favor the banks seeking foreclosure.

It is time for a complete overhaul of the federal court and judicial appointment process which has become completely tyrannical. It is time to remove the Outlaws in Robes and replace them with honest judges.

No Good Deed Goes Unpublished: Precedent­ Stripping and the Need for a New Prophylactic Rule

Edward Cantu*

To avoid an arbitrary discretion in the courts, it is indis­pensible that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them 1

Thquestion then arises whether an overworked, underpaid judiciary confronted with too great a caseload can solve the problem by giving all of the litigants half a loaf. Or whether the proper response, given th[eir] diligence obligation, …

mean[s] that judges should not facilitate [Congress’s] under­ funding of the judiciary by delivering second class justice. 2

UNPUBLISHED & UNCONSTITUTIONAL…

Judge Richard Arnold writing for the Eighth Circuit panel de­clared the local precedent-stripping rule unconstitutional on separation-of-powers grounds. Anastasoff, 223 F.3d at 899.

The Majority of Federal Circuit Opinions are UNPUBLISHED. pic.twitter.com/Zyh63QBW9I

— LawsInTexas (@lawsintexasusa) February 5, 2021

INTRODUCTION

One need not be a rigid formalist to find irksome the practice of judges stripping their opinions of precedential value. But is the practice unconstitutional?

Some scholars, and at least one federal appellate judge, have argued “yes,” but on grounds that rattle at their fault lines. Some of the less ambitious constitutional arguments have proposed that precedent-stripping is per se violative of individual rights, but these arguments seem to fall short, nagging­ly so in the minds of readers who want to believe them. This author is one of the anxious faithful.

Still believing the practice of precedent-stripping to be obnoxious to the fair and principled ad­ministration of justice, I ask in this article: is the per se unconsti­tutionality of precedent-stripping a prerequisite for a constitutionally based rule prohibiting precedent-stripping?

This article proposes that it is not, for the Court has a long history of “over­ protecting” rights with “constitutional prophylactic rules” where doing so is the only feasible way of protecting the “core” constitutional right at issue.

In this article I examine the possibility of borrowing from this prophylactic rule jurisprudence as a basis for attacking precedent-stripping on constitutional grounds, regard­ less of the possibly per se constitutionality of the practice.

To illustrate the basic obnoxiousness of precedent-stripping to the integrity of appellate adjudication, imagine yourself as the appellant in the following hypothetical, then consider whether you were denied due process of law and, if so, how you would prove it:

A government official violates your rights, so you file a civil rights lawsuit. The trial court  dismisses  your  suit,  concluding that the defendant is entitled to some sort of immunity. You appeal. It’s a close call.

Your  argument sounds quite reasonable;  it is a plausible corollary of existing precedent although the appellate court has not yet had occasion to expressly say so.

There’s only one problem: even though you have a right to an appeal, the court would rather not deal with your issue. It’s too busy. Your issue is too complicated, or perhaps it’s too controversial.

So the court punts your issue.

Does it dispose of your appeal on another ground, perhaps seizing on some jurisdictional roadblock and noting that it is obliged to do so sua sponte? No, the court wants to save the issue for the another day, perhaps when it feels more inclined for whatever reason to parse the Pandora’s box of issues your novel argument implicates.

The court issues an opi­nion affirming the trial court; it addresses your legal argument, but does so in an exceedingly cursory or even circular fashion. Not wanting to be bound by what it knows is a less-than-thorough ad­ judication of an important issue, the court includes a curious foot­ note declaring the opinion to be “unpublished” and without prece­ dential value.

Your case was disposed of using what I will hereafter refer to as a precedent-stripping rule. Since the 1960s, the federal appellate courts have promulgated rules that allow judges to decide whether their own opinions will be published in the bound reporters, and thereby serve as formal and precedential statements of “what the law is,” or whether they will be kept under wraps, never to formal­ ly resurface as precedent even in subsequent cases presenting ef­ fectively identical facts. In the above scenario, were you afforded “due process of law”? If so, how would you prove it? Are you en­ titled to depose the judges on the panel, send them interrogato­  ries, or ask them to otherwise swear under oath that they disposed of your case in a summary fashion for a valid reason? These ques­ tions make obvious the insurmountable burden appellants would face were they to challenge the invalid uses of precedent-stripping that have become commonplace in the federal courts.

Commentators have paid much critical attention to precedent­ stripping over the past decade, as courts, due to growing casel­ oads, have increasingly relied on the practice as an avenue for summary disposition.3 Modern precedent-stripping practices have been labeled a “scandal of private judging,” 4 have allegedly created “a double-track system [that] allows for deviousness and abuse,”5 and have created a body of “secret la w.”6

Some judges have joined in the drumbeat to end the practice. Some of the most persuasive arguments have called for courts to end precedent-stripping on prudential grounds,7 a strong argument given the traditional no­ tion that the judiciary, unlike the other two branches, commands power only through its prestige.8

Those ambitious enough to argue that precedent-stripping is per se unconstitutional have ar­gued that the practice is ultra vires,9 that forbidding future liti­gants from relying on prior non-precedential dispositions works an unconstitutional restraint on speech,10 or that the practice enables judges’ disparate treatment of similarly situated litigants in disre­gard of the Equal Protection Clause. 11

Although these arguments are debatable and warrant attention, one weakness common be­tween them is the seeming need to end with a conclusion of per se unconstitutionality, which may be unnecessarily ambitious.

In this article I discuss a heretofore unexplored procedural due process route that does not turn on a conclusion of per se unconsti­tutionality.

I examine the basic premises underlying the Supreme Court’s establishment of constitutional prophylactic rules, with a focus on Miranda u. Arizona. 12

We should clarify that the Anastasoff opinion was vacated as moot on rehearing en banc, the court said: “The controversy over the status of unpublished opinions is, to be sure, of great interest and importance, but this sort of factor will not save a case from becoming moot.” pic.twitter.com/Ap4EUbjbYN

— LawsInTexas (@lawsintexasusa) February 5, 2021

I then propose that the insidious misuse of precedent-stripping by courts presents such a systemic threat to appellants’ procedural due process rights that the need for a new prophylactic rule forbidding precedent-stripping in the federal appellate courts arguably follows from the reasoning in the Court’s prophylactic-rule case law.13

Importantly, this article is not intended to cavalierly demand a new prophylactic rule and provide a comprehensive practical scheme for its administration.

Nor will I attempt to catalogue and retort the numerous arguments (mostly pragmatic) advanced in response to normative attacks on precedent -stripping; 14

this is largely because these arguments raise very legitimate practical concerns that are so serious they deserve special attention in sep­arate works.

Rather, my purpose is much more narrow:

I mean to demonstrate that the offensiveness of precedent-stripping does not just take the form of classic “rule of law” problems, prudential conundrums, harm to institutional legitimacy, or unfairness to litigants who seek to rely on prior unpublished decisions as precedent.

Rather, I highlight new doctrinal angle from which to argue that an all-out prohibition of precedent-stripping on consti­tutional grounds can plausibly follow from Supreme Court case law regardless of per se constitutionality.

While such a prophylac­tic rule would, by definition, apply to state courts as well, I focus on the federal courts given the relative breadth of data surround­ing the practice of precedent-stripping in the U.S. circuit courts.

I proceed as follows. Part II examines the methods by which dispositions are stripped of precedential value by the very judges who write them, and thus become what are often termed “unpub­lished opinions.”

Part II also discusses the proffered justifications for such methods.

Part III surveys the available evidence that courts regularly use precedent-stripping in manners not permitted by local precedent-stripping rules and discusses how such stealthy misuse of precedent-stripping works to deny appellants full and fair adjudication of the issues and arguments presented in their appeals.

Part IV discusses the Supreme Court’s formulation of prophylactic constitutional rules, and the practical exigencies that inspire their creation, with a focus on Miranda.

Part V then pro­poses that, given the evidence of widespread misuse of precedent­ stripping, and given the practical difficulty litigants face in prov­ing such misuse in individual cases, the logic of Miranda and oth­er prophylactic-rule case law supports the creation of a prophylac­tic rule prohibiting precedent-stripping.

“THE ROAD TO HELL IS PAVED WITH GOOD INTENTIONS”: HOW AND WHY JUDGES ARE ABLE TO STRIP THEIR OWN OPINIONS OF PRECEDENTIAL STATUS

During the 1950s and 1960s the federal courts saw, and fore­ saw, a daunting growth in their dockets without a corresponding rise in available resources. 15

Bound case reporters were balloon­ing such that many feared that absent some reform in the publica­tion of judicial opinions, the sheer volume of precedent would make it increasingly impracticable for lawyers and judges to iden­tify opinions to serve as primary authority in future cases. 16

To deal with this problem, the Judicial Conference of the United States in 1964 declared that the federal appellate courts should publish – and therefore make  precedential – only  those  opinions  that were “of general precedential value.” 17

The Advisory Council for Appellate Justice (ACAJ) provided guidelines to the circuits for the promulgation of local selective publication rules. The ACAJ urged that, in deciding whether to publish an opinion, courts  should consider factors such as whether the decision  created  a new rule of law, altered an existing one, or resolved some conflict of authority.18 The resulting local rules track this standard.19

Given the growth in dockets since the 1960s, the proportion of cases disposed of via non-precedential dispositions has sharply increased.

According to the Administrative Office of the U.S. Courts, 81.8% of federal appellate court opinions went “unpub­lished” in 2008,20 meaning that a vast majority of opinions issued  by the federal appellate courts in 2008 were deemed inappropriate for use as precedent purportedly on  the  basis  that  they represented perfunctory application of well-settled rules in con­ texts where the proper application of those rules indisputably al­lowed only for the result reached.

To put it yet another way, in theory, 81.8% of 2008 federal appellate dispositions offered abso­lutely nothing new to practitioners, nor did the outcomes  reflect any meaningful evolution – no matter how slight – of  the  respec­tive law.

To help ensure that future panels did  not  consult  them  in deciding future cases, precedent-stripping rules, until recently, forbade attorneys from even citing unpublished opinions. 21

Perhaps due to the steady drumbeat of calls for courts to allow citation to unpublished opinions at least as persuasive authority, Federal Rule of Appellate Procedure 32.1 was recently promulgat­ed; it abrogates all local circuit rules insofar as they prohibit cita­tion of unpublished opinions issued after January 1, 2007.22

Although amendments to the FRAP (e.g. 32.1) allow citation to non-precedential dispositions, courts are free as ever to deny their opinions precedential status and nothing exists to ensure that judges do not employ precedent­ stripping for purposes not expressly sanctioned. pic.twitter.com/bWvabj9X7f

— LawsInTexas (@lawsintexasusa) February 5, 2021

However, Rule 32.1 leaves undisturbed courts’ ability  to  strip  their own opinions of precedential effect, thus failing to resolve what is in this author’s view the most serious problem with “non­ publication.”

That precedent-stripping raises serious concerns should be ob­vious upon a cursory reflection on the very nature of the rules sanctioning the practice.

Why would a court need to formally and affirmatively strip a disposition of precedential status if it truly offers nothing new?

If there is a published opinion on point, one that makes the given proposition at least equally clear, would  not an attorney seek out the published opinion representing the given proposition (and likely providing greater rhetorical ammunition given the relative brevity of unpublished opinions)?

Attorneys do not cite unpublished opinions unless it helps their case to do so.23

Any follower of the federal courts knows that unpublished disposi­tions often do work qualifications, clarifications, or refinements of the respective legal principles, even if so subtle when made (yet subsequently meaningful to litigants) so as to escape the foresight of the authoring judges. 24

I am text block. Click edit button to change this text. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.

Indeed, because the very promulgation of Rule 31.2 represents an acquiescence to voices within the pro­fession calling for the end of citation prohibitions, it is difficult to imagine any other impetus to the rule other than the  perceived value of unpublished opinions to the bar.

As Ninth Circuit Judge Alex Kozinski has noted in answering demands by the Ninth Cir­ cuit bar to allow citation to unpublished opinions (before the promulgation of Rule 31.2),

“At bench and bar meetings, lawyers complain at length about being denied this fertile source of au­thority.”25

Although amendments to the Federal Rules of Appellate Proce­dure allow citation to non-precedential dispositions, courts are now as free as ever to deny their opinions precedential status, and nothing exists to ensure that judges do not employ precedent­ stripping for purposes not expressly sanctioned by the respective rules.

In this regard, evidence strongly suggests that courts regu­larly use precedent-stripping as a means of truncating the adjudi­cation of appeals, rather than merely truncating the opinions that announce outcomes; of course, precedent-stripping rules contem­plate only the latter. This evidence is a topic to which I now turn.

EVIDENCE OF SYSTEMIC MISUSE OF PRECEDENT-STRIPPING RULES

The federal appellate courts are exceedingly insular. While most lawyers believe that federal judges’ constitutionally granted immunity from transient public passions yields a net gain, life tenure and a protective mystique can erode the healthy self­ consciousness that is often the most powerful force disciplining public servants.

So little direct evidence of “how the  sausage is made” in specific cases is available to the public. Thus, examining the frequency of misuse of precedent-stripping invariably involves inferences about intentions. But this is not as much of an inexact science as it may initially seem, as empirical study sometimes yields premises that support only one plausible conclusion.

For example, David Law conducted a statistical analysis  of Ninth Circuit dispositions of asylum appeals between 1992 and 2001 in order to test the hypothesis that “the decision to publish is influenced by judicial ideology.”26 After exhaustive study, Law concluded:

[T]here exists, for some judges, a significant relationship be­tween how the judge votes on the merits of the case, and whether the case is published: publication increases the like­ lihood that certain judges vote in favor of asylum. The results suggest that voting and publication are, for some judges, stra­tegically intertwined: for example, judges may be prepared to acquiesce in decisions that run contrary to their own preferences, and to vote with the majority, as long as the decision remains unpublished, but can be driven to dissent if the majority insists upon publication.27

Law further concluded that “[i]deology influences judicial voting in unpublished cases”:

Majority-Democratic panels were significantly more likely than majority-Republican panels to grant some form of relief to asylum seekers.

Moreover, this difference was pronounced in both published and unpublished cases. With respect to un­published cases, majority-Democratic panels granted relief 20.5% of the time, while majority-Republican panels did so just 7.5% of the time.

In other words, Democratic panels were 2.7 times more likely than Republican panels to rule in favor of the asylum seeker.28

NextGen Lawyer and @fedsoc member Catherine Eschbach now of @MorganLewisLaw and former clerk to https://t.co/u1sNyBk8Ja and https://t.co/tgOgch6hNI explains the Art of Bias to highlight “certain” district judges as known friends of 5th Cir. Video credit @thehba @RMFifthCircuit pic.twitter.com/6b72iWWWsC

— LawsInTexas (@lawsintexasusa) February 5, 2021

Regarding cases involving law so settled such that its operation in a case is not open to reasoned debate (the theoretical description of cases stripped of precedential value) liberal and conserva­tive judges should not differ in their conclusions this frequently, if at all.

Although one need not be a dyed-in-the-wool legal realist to recognize that judges’ ideologies often inform their jurisprudence, in cases where outcomes are truly undebatable, examples of judges disagreeing on outcomes based on ideology are rare, pri­ marily because most judges recognize the obvious impropriety of literally ignoring directly on-point and controlling authority.

Thus, if we assume a minimum amount of integrity and compe­tence on the part of Ninth Circuit judges – as I think we should­ the most reasonable conclusion based on Law’s analysis is that many asylum appeals disposed of via non-precedential disposi­tions are arguable on the merits such that their outcomes, if pub­lished, would work a refinement  or clarification of governing law.29

Donald Songer, Dana Smith, and Reginald S. Sheehan in their study coded hundreds of Eleventh Circuit opinions for statistical analysis in order to determine whether  judges’ decisions to publish were consistent with the written non-publication local rule.30

Ac­cording to the authors, “criteria  [for using precedent-stripping rules] are not … applied in all instances and concomitantly there are many controversial cases that are ending up [disposed of] in unpublished decisions.”31

The authors observed that, in cases dis­posed of through unpublished dispositions, “panels dominated by Democratic judges were liberal in 28.7% of their decisions, while Republican-dominated panels were liberal in only 8.7% of their decisions”; the  authors thus concluded that “ideology is a factor  in at least 20% of the decisions that result in … unpublished opi­nions.”32

Other statistical data is available.

According to Lauren Robel, 30% of federal judges admitted in a survey that they sometimes forwent drafting published opinions for cases in which they knew published opinions “should be written.” 33

One federal appellate judge has admitted that “[i]n our circuit, staff attorneys prepare routine drafts that judges approve but do not research or write. . . .

These definitely  should  not  be available for citation.” 34 

Similarly, a study of the federal courts during 1978-79 revealed that one out of every seven unpublished dispositions in the federal appellate courts resulted in reversals,35 and in 2000, the rate rose  to one in every 4.7. 36

That is, in  2000, in one out  of every  4.7 cases the operation of the respective law was allegedly perfectly clear, the respective district judge applied the law incorrectly and re­ versibly erred in doing so.

That reversal results this frequently is significant because minor district court errors that manifest no harm to appellants are generally ignored on appeal as “harmless errors,” and are therefore not adequate bases for reversal.

For example, in the Fifth Circuit, district court “abuses of discretion” warrant reversal only if, pursuant to the “harmless error  doctrine,”  “a  substantial right of  the    complaining party was af­fected.”37 ” An error affects substantial rights if it affects the out­ come of the trial proceedings.”38

Thus, the more than one out of five unpublished dispositions announcing reversals in 2000 represented significant legal errors  by the respective district judges.39

Either district judges frequently and blatantly ignored well-established and perfectly clear precedent in those  cases, or the operation of precedent was not clear in many of them.

Thus unsurprising is Sixth Circuit Judge Danny Boggs’s asser­tion that the “theory often advanced to explain unpublished opi­nions”- that is, the matters disposed of via unpublished opinions are “easy cases that are clearly dictated by existing precedent”-

“is self-evidently wrong for both empirical and theoretical reasons.

As an empirical matter, plenty of unpublished decisions have been accepted for review and reversed by the Supreme Court .”40

Judge Boggs continued, explaining:

Even if all that is meant by “easy  cases” is  that  some cases are clearly dictated by precedent within a particular circuit at the time a case is decided (without regard to circuit splits or other facts that might cause the Supreme Court to review and possibly reverse a decision clearly dictated by circuit law at  the time), the “easy cases” rationale is still faulty on empirical grounds.

Consider the number of unpublished opinions that involve lengthy dissents.41

On this note, Deborah Jones Merritt and  James  J.  Brudney have published the results of their statistical analysis of the 1,224 unfair labor practices cases the  federal appellate  courts  disposed of between 1986 and 1993. 42

They found that the non-precedential opinions studied “included a surprising number of reversals, dis­sents, and concurrences.”43

They also concluded:

Democratic judges were significantly more likely than their Republican colleagues to support the union in these unpub­lished cases. Judges who had held elected office or served as full-time academics were also more likely to vote for the un­ ion. Conversely, judges with prior judicial experience, as well as Latino and Asian judges, were significantly less likely to support the union. 44

Merritt and Brudney thus concluded that:

[P]anels authoring unpublished opinions reach some results with which other reasonable judges would disagree. Such di­vergent views are likely to reflect both differences as to the meaning of legal principles and disagreement over the proper application of seemingly settled law.

Today we were updating https://t.co/r0JQzpwP66
It’s a personal injury suit with $4m jury award in https://t.co/u1sNyBk8Ja‘s court. It’s on appeal at https://t.co/3AEdYLyLuY and the 3 Panel of King, Elrod and @JusticeWillett heard oral yesterday. Here’s what Elrod had to say🧐 pic.twitter.com/l2qXSz3wqq

— LawsInTexas (@lawsintexasusa) February 6, 2021

Under those circums­tances, failing to give unpublished opinions precedential effect raises the very specter … that like cases will be decided in unlike ways, that judges’ decisions will be regulated  only  by their own (personal) opinions……………………………………………….. 45

Sarah Ricks studied the Third Circuit’s case law on the “state­ created danger” doctrine relating to substantive due process.

She studied both precedential and non-precedential opinions over a period of seven years and concluded that “the doctrinal inconsis­tencies between the Third Circuit’s precedential and non­ precedential state-created danger opinions created a layer of hie­rarchical decision-making” that undermines “the appellate func­tions of ensuring that like cases are treated alike, [and] of ensur­ ing that judicial decisions are predictable and not arbitrary.”46

A vast body of anecdotal evidence reinforces the empirical data.

On more than one occasion federal judges have expressly voiced their disdain over misuse of precedent-stripping rules.

As a random example among many, consider a dissent from Fifth Circuit Judge Jerry Smith, in which he  urged  his colleagues  to reconsider the policy of refusing to lend precedential value to unpublished dispositions. 47

Judge Smith noted that although “theoretically, because an  unpublished case does nothing new, an older case easi­ly can be cited for the same proposition, . . . there are  opinions that, though unpublished, do establish a new rule of law or apply existing  law  to distinct facts.”48

Judge  Smith  continued,  citing

“[e]mpirical evidence” suggesting that such cases “are more com­mon than one might think.”49

Richard Posner, Chief Judge of the Seventh Circuit, has as­serted that non-precedential opinions are a “sort of a formula for irresponsibility,” and has admitted that “[m]ost judges, myself in­cluded, are not nearly as careful in dealing with unpublished deci­ sions.”50

That a judge so familiar with the workings of the federal courts, with vast experience within them, and with such familiari­ty with the jurisprudential issues the federal courts face, would confidently assert that “most judges” give non-precedential dispo­sitions less care is quite damning.

Consider further an article by Patricia Wald, former Chief Judge of the D.C. Circuit,

wherein she laments the gradual advent of “a double-track system [that] allows for deviousness and abuse”:51

I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would-be dissenters go along with a re­sult they do not like so long as it is not elevated to a precedent.

We do occasionally sweep troublesome issues un­der the rug …. [The common absence of meaningful rhetoric in] unpublished decisions signifies that they are the product of a different and much-abbreviated decision-making process.52

Judge Wald also raised the issue with her colleagues in her con­currmg opinion in National Classification Committee u. United States:

I want … to express my concerns about the manner in which No. 83-1866 was decided. In my view, it did not present the type of case appropriate for disposition without a published opinion. Indeed, the present case testifies to the unfortunate by-products of the overuse of this rapidly growing mode of disposition. Although the heavy caseload in this court neces­sitates the disposition of a large  percentage of cases by order or short unpublished memorandum opinions, serious ques­tions continue to be raised about the  circumstances  in  which it is appropriate for this court to dispose of cases in such a truncated manner. 53

As another example, Judge Richard Arnold, former Chief Judge of the Eighth Circuit and one of the most vociferous opponents of precedent-stripping on the federal bench, has asserted that use of

precedent-stripping has created “a vast underground body of law .

. . disavowed by the very judges who are producing it”:

[M]any cases with obvious legal importance are being decided by unpublished opinions. Some unpublished opinions-and, I must say, I believe this occurs more in other circuits than in the Eighth-are fairly elaborate. They go for as long as twen­ ty pages. They contain citations and legal reasoning. Occa­ sionally they decide questions that anyone would describe as important.54

Judge Arnold goes further; although he disclaims witnessing ac­ tual misuse by his colleagues, he seems to acknowledge it when he states:

If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the  panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and  no one will ever  be the  wiser…. Oif, after hearing ar­ gument, a judge in conference thinks th[a]t a certain decision should be reached, but also believes that the decision is  hard to justify under the law, he or she can achieve the result, as­ suming agreement by the other members of the panel, by de­ ciding the case in an unpublished opinion and sweeping the difficulties under the rug.55

Other judges have written about the tendency for some col­ leagues to use precedent-stripping as a means of disposing of ap­ peals without having to commit to the reasoning inspiring their decision as “the law” on the issue, lest they face the prospect of en bane vacatur, Supreme Court reversal, frustration from circuit colleagues (who for obvious reasons pay most attention to newly issued binding opinions) or just feel more comfortable deferring adjudication of an issue of first impression for another day. As Judge Boggs has noted:

Because [en bane or Supreme Court] review of panel decisions usually is limited to decisions that present the need for estab­ lishment of an authoritative rule-perhaps where there has been a conflict among prior decisions, or where the issue in­ volved is of particular public significance-it is left to the pa­ nels themselves to protect against the possibility of ordinary error. One way to do this is to enter rule-setting decisions on an unpublished basis, thus permitting the question at issue to continue to “percolate” in the circuit before adopting a final, authoritative rule.56

On this note, Judge Wald speculates that inappropriate use of non-precedential disposition arises when “overworked judges [are] seduced too easily into preferring the easier, nonrhetorical route, especially in close cas es.”57

Misuse of precedent-stripping rules has become so common such that federal judges openly admit to using them for purposes not endorsed by the respective rules.

Consider Ninth  Circuit Judge Alex Kozinski’s statement before Congress, made in defense of noncitation rules:

“[W]hile three judges might all agree on the outcome of the case before them, they might not agree on the pre­cise reasoning or the rule that would be binding in future cases if the decision were published.” 58

According to Judge Kozinski, even though language in  unpublished opinions  may inadvertently imply (notwithstanding being cursory) certain premises or reasoning, such reasoning is not fairly attributable to the entire panel, and therefore attorneys should not be permitted to rely on such lan­guage as statements of circuit law in future cases.

Judge Kozinski’s remarks unselfconsciously ignore the fact that the Ninth Circuit rule in effect at the time, Rule 36-2, did not list this rationale as a valid basis for precedent-stripping.

And of course, if three panel members cannot agree on the operation of controlling law in a given case, it is likely that a definitive state­ment of law, if negotiated between the judges as their judicial rule contemplates, would refine or clarify the relevant law.

Therefore, the theoretical justification for non-publication is absent in these cases. 59

Hearsay and anecdotal evidence consistent with the above is abundant.

For example, Professor Pether notes:

One colleague tells me that on the federal court on which he clerked, decisions about whether opinions should be published often turned on which clerk was perceived to need an opinion of his/her authorship published for future employment pur­poses.

There are also anecdotal accounts of judges “punish­ing” repeat-player litigants and lawyers for whom they are le­gally obliged to rule against their inclination, by not publish­ ing the relevant opinion so it will not be available as precedent in future litigation. Unsurprisingly, no public record of such behavior exists.60

David Law has asserted his belief, based on his “own observations as a law clerk on the Ninth Circuit,” that “circuit judges prefer to publish decisions they favor on ideological grounds.”61

Compounding the problem of general inappropriate use of precedent-stripping is the fact that certain classes of cases are disproportionally disposed of through non-precedential disposi­tions, thus raising suspicions that courts regularly treat pro se or criminal appellants as second-class litigants.

In proposing “peri­odic overviews of which kinds of cases get sent down one track ra­ther than another,” Judge Wald has noted:

Danger signals include the presence of obviously difficult is­sues or the predominance of certain kinds of cases (for exam­ple section 1983 prisoner cases) on one track, inconsistencies between published and unpublished results and  rationales, and widely differing rates of published and unpublished opi­nions among different judges.62

Ninth Circuit Judge Margaret McKeown has described this re­ legation of certain types of cases as constituting a “private history” of precedent-stripping:

Judge McKeown’s thesis was that the development of contem­porary unpublication derived not only from the overt  cause, the difficulties of indexing law libraries because of the volume of opinions issuing from the federal courts, but from the fed­eral judiciary’s anxiety about floods of civil rights and pro se prisoner postconviction appeals litigation in the 1960s.63

Edith Jones, currently Chief Judge of the Fifth Circuit, has stated that in deciding whether a case will be disposed of via an unpub­lished opinion, or whether it will be handled primarily by non­ Article III court personnel such as staff attorneys, the court con­siders “criteria as whether they were filed pro se or whether they present ‘routine,’ as opposed to novel, issues.” 64

A former Chief Judge of the Fourth Circuit has noted that “[n]ow no postconvic­tion case gets on our regular hearing calendar unless at least one judge is of the opinion that a full hearing would be of assistance in its disposition.” 65

A Ninth Circuit judge has noted, in response to questions about the so-called “screening” category of cases­ essentially, cases tracked for summary disposition – that “we lack

the resources to give 10,000 dispositions the same attention and scrutiny as precedential opinions must have.”66

Thus, in some courts certain classes of cases are categorically presumed to be frivolous…

unless an overworked judge, understandably distracted by many other complicated cases, happens to notice an issue war­ranting traditional adjudication.67

Some argue that this “double-track” system of justice is the re­sult of judges weighing the importance of cases based on the mon­etary value implicated.68

Others urge that this advent of a “two­ track system” of justice is due partly to court culture wherein an aura of intellectual gravitas surrounds the doctrinal ”big picture” issues often inhering in civil cases.

The implication being that among judges and clerks, “law nerd” is a badge of honor, and judges or (more often) their clerks rarely waste opportunities to demonstrate their bookishness bona fides by approaching the most arcane doctrinal issues with seeming passion.

In civil non-pro se cases, the lawyers tend to be the more celebrated members of the bar (while public defenders, perhaps unfairly, are often not) and, because they get paid incredible hourly rates to do so, they tend to raise the most novel, creative, and refined legal arguments.

Thus, as Penelope Pether discusses, work on civil appeals often provides a greater degree of professional satisfaction to judges and law clerks, and criminal or pro se  matters quickly gain the  reputation of being routine, unchallenging, and boring.69

To be sure, that certain classes of cases are disproportionately disposed of via non-precedential opinions is not surprising,  nor is it in itself evidence of systemic elitism or unfairness.

Chief Judge Jones is correct when she notes that the dockets of the federal appellate courts have been “dumbed down,” to use her words, by pa­tently frivolous arguments, brought largely from pro se appel­lants.70

These are often prisoners who have nothing better to do with their time but to bring successive and grossly meritless ar­guments, and in the process bog down administration of the feder­al courts. The concern, however, is that judges’ sensitivity to this reality, and need to deal with it, has given rise to a system where­ by certain types of appeals are presumed to be meritless, and are disposed of based on such a presumption without the full consid­eration and research conducted for other appeals.

In this sense, cases in which courts knowingly use precedent-stripping as a means to forgo the deliberation and research required to thorough­ly adjudicate an appeal may be the tip of the iceberg.

The base of the iceberg may be cases wherein appellants suffer summary disposition of their arguments because judges perhaps negligently, i.e., unconscientiously but not intentionally, assume such cases are utterly routine.

Scholars and judges  have repeat­edly noted how the process of opinion writing is more than just perfunctory memorialization of premises firmly established in the mind, and reasoning fully evolved and vetted, prior to the grasp of pen. Rather, opinion writing is often part of the process of adjudi­cation itself rather than a mere vehicle for its announcement.

As Lauren Robel notes, “[M]any judges have noted how frequently a case’s complexities are revealed through the process of writing an opinion.” 71

For example, Judge Wald explains:

Even when judges agree on a proposed result after reading briefs and hearing arguments, the true test comes when the writing judge reasons it out on paper (or on computer). That process, more than the vote at conference or the courtroom di­alogue, puts the writer on the line, reminds her with each tap of the key that she will be held responsible for the logic and persuasiveness of the reasoning and its implications for the larger body of circuit or national law.

Most judges feel that responsibility keenly; they literally agonize over their pub­lished opinions, which sometimes take weeks or even months to bring to term.

It is not so unusual to modulate, transfer, or even switch an originally intended rationale or result in mid­ stream because “it just won’t write.”

But writing to explain a preordained result with no concern for its precedential effect under a self-imposed time constraint of hours is  something else entirely, inviting no backward looks or self-doubt.

Rhe­toric will always be tied to import and permanence, and its absence in unpublished decisions signifies that they are the product of a different and much-abbreviated decision-making process.72

Chief Judge Jones has expressed this same sentiment:

“[T]he necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or is­ sues which their normal instincts would otherwise cause them to avoid.”73

Further, in his aforementioned 2002 statement before Congress, Judge Kozinski stated in his attempt to defend  precedent­ stripping:

[Writing opinions is a] very difficult and delicate business in­deed …. While an unpublished disposition can often be pre­pared in only a few hours, an opinion generally takes many days (often weeks, sometimes months) of drafting, editing, po­lishing and revising. Frequently, this process brings to light new issues, calling for further research, which may sometimes send the author all the way back to square one.74

In their unselfconsciousness, Judge Kozinski’s comments, made in an attempt to actually rationalize the use of precedent-stripping rules, are quite revealing.

In the balance of his statement, Judge Kozinski generally chooses his words carefully, attempting to ex­plain how judges’ use of precedent-stripping yields greater effi­ciency and prevents harm to the bar.

According to Judge Kozins­ki, by enabling judges to forgo careful expression of their reason­ing, non-precedential dispositions allow adjudication of the respec­tive appeal without the confusion or appearance of contradiction that might result were less carefully crafted opinions made prece­dential.

As he puts it, “If  unpublished dispositions could be cited as precedent, conscientious judges would have to pay much closer attention to their precise wording. Language [as opposed to rea­soning or principles] that might be adequate when applied to a particular case might well be unacceptable if applied to  future cases raising different fact patter ns.”75

But Judge Kozinski undermines his own implicit (but crucial) premise-that non-precedential dispositions represent only the absence of precise language rather than thorough analysis or re­search – by unwittingly conceding that the continuing evolution of analysis that characterizes opinion writing often meaningfully effects the application of the law, bringing to “light new issues,” “calling for further research,” and, most importantly, “sending the author back to square one,” which Chief Judge Jones agrees some­ times means a change in result.76

A corollary of Judge Kozinki’s remarks, which are reinforced by what other judges (and the law clerks that assist them) acknowl­edge, is that opinion writing is an organic contemplative process rather than one of mere after-the-fact recitation. It is part of the process of adjudication in that the process of drafting, and the reaching of panel consensus 77 on a final precedential version, in­ volves deep consideration of the future implications of, or the ana­ lytical soundness of, what  is written.

These considerations are  all a part of establishing “what the law is,” and they have long been considered legitimate – indeed, necessary-parts of the adjudica­tive process (see the ubiquitous “policy” questions on law school exams).

They ensure that the principle expounded or applied in a given case is one that encompasses “justice” in the  various senses of the term: balancing the public interest, textual fidelity,  ade­quate incorporation of prudential doctrines, legislative intent, and vindication of the given litigant’s rights in a manner that most maintains the stability, predictability, and integrity of the law and

the judicial system. What  results  from  this  full  adjudicative process is often fine tuning or all out redrafting of the opinion, or even alteration of the outcome.

In short, evidence indicates that courts often use precedent­ stripping rules as a means to knowingly forgo formal and complete adjudication of issues for various reasons. The problem is com­ pounded by the reality that even where misuse of precedent­ stripping is not knowing, judges often forgo the deliberative seg­ment of adjudication associated with opinion writing based on the presumptuous hunch that those cases implicate the relevant law only to an extent already addressed in prior published opinions.78 This reality-which for the moment we will assume presents pro­ cedural due process problems-is systemic in the federal appellate courts. The question arises, then, as what to do about it. The an­swer arguably lies in the logic of the Supreme Court’s prophylactic rule jurisprudence, a subject to which I now turn.

“OVERPROTECTING” RIGHTS: THE EXIGENCIES THAT INSPIRE PROPHYLACTIC RULES

Unlike in the early hypothetical, when courts misuse precedent­ stripping rules, it’s virtually impossible to tell. As Judge Arnold noted, if judges wish to decide a case based on “extraneous rea­ son[s] … they can easily do so through the device of an abbre­viated, unpublished opinion, and no one will ever be the wiser.” 79 This fact not only means that panels feel more comfortable resort­ ing to this “device,” it also makes it all but impossible for litigants to demonstrate abbreviated review. How, then, can litigants rea­ listically establish the type of facts on which a procedural due process argument must be predicated? Without some relief from the normal burdens of proof, the answer is that in most cases they cannot.

This problem of undetectability is not novel. The Court’s deci­ sion in Miranda is a good example of how, when faced with gov­ ernment misconduct that is empirically known to be widespread, but that is also virtually impossible to prove in  individual cases, the Court has distilled from express constitutional mandates

prophylactic rules-roughly meaning rules that operate to protect more than just the  core constitutional right,  because “over­ protection” is necessary in order to avoid unacceptably extreme under-protection of the core right.

Strictly speaking, the  meaning  of “prophylactic rule” is not yet settled.80

Professor Klein defines a “constitutionally prophylactic rule” as a: doctrinal rule or legal requirement determined  by  the  Court as appropriate for deciding whether an explicit or “true” fed­eral constitutional rule is applicable.

It may be triggered by less than a showing that the explicit rule was violated, but provides approximately the same result as a showing that the explicit rule was violated.

It is appropriate only upon two de­terminations: first, that simply providing relief upon a showing that the explicit right was violated is ineffective; second, that use of this rule will be more effective and involve only ac­ceptable costs.81

The most expansive definition of “prophylactic rules” is that they are  necessary   corollaries of constitutional mandates:

Brian Landsberg argues that “[t]hese rules inhere in the nature of any constitutive document designed to advance normative values. And they inhere in the function of courts.”82

David Strauss has power­ fully observed that prophylactic rules are so much an inherent aspect of constitutional adjudication that their existence as a dis­tinct conceptual species of rules is essentially illusory; this is be­ cause when courts decide constitutional cases, “they consider not only the constitutional values at stake, but also the institutional difficulties that courts face in advancing those values.”83

According to Strauss, then, courts routinely integrate these latter consid­erations into their constitutional holdings even when such holdings are not subsequently conceptualized by observers as prophylactic rules.

Thus, according to Mitch Berman, prophylactic rules-or what he terms “constitutional decision rules”-“are a ubiquitous component of constitutional doctrine,” 84 even if courts do not tag their prudential creations as “prophylactic rules.”

The most often discussed specimen of the Court’s prophylactic rule jurisprudence is Miranda.85

There, the Court considered fine­ tuning the rubric used to determine whether custodial confessions of criminal defendants are admissible at trial. Since long before Miranda, courts administered this rule by examining on a case-by­ case basis whether the evidence demonstrated that a given confession was secured because the defendant’s “will was overborne” by authorities.86

In Miranda, however, the  Court created and applied a superseding standard, one borne out of what the Court perceived to be the practical realities of police interrogations.

In Miranda, there was no evidence before the Court that the confession at issue was in fact the product of police coercion. As the Court noted, “To be sure, the records do not evince overt physical coercion or patent psychological ploys.”87 In holding that Mi­ randa’s confession was nevertheless inadmissible, the Court emphasized the fact that, pursuant to modern law enforcement tech­niques, interrogation: still takes place in privacy.

Privacy results in secrecy and this in turn results in a gap in our knowledge as to what  in fact goes on in the interrogation rooms. A valuable source of in­ formation about present police practices however may be  found in various police manuals and texts which document procedures employed with success in the past, and which rec ommend various other effective tactics. . . .

By considering these texts and other data, it is possible to describe procedures observed and noted around the country.88

After describing the recommended practices in detail, the Court stated:

From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear.   In essence, it  is [to] …  undermine [the subject’s] will to resist…. When normal procedures fail to produce the needed result, the police may resort to deceptive  stratagems  such  as  giving  false legal advice.

Even without employing brutality, the “third degree” or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.89

From these two considerations – the inherent inability of courts to determine what takes place in specific interrogations given the privacy that characterizes them, and evidence suggesting what happens generally during police interrogations – the Court concluded that abandoning the case-by-case standard of coercion-in­ fact was necessary in order to provide “adequate safeguards. to protect precious Fifth Amendment rights.”90

That rule was to re­quire police to apprise detainees of their rights before attempting to interrogate them, including the Fifth Amendment right to re­ main silent and avoid interrogation altogether.

In short, the Miranda Court decided that the traditional case­ by-case test was unrealistically stringent. In theory it rendered inadmissible forced confessions, but it too often stripped the Fifth Amendment of any practical force largely because of the difficulty of proving coercion in specific cases.

As Professor Klein has noted, prior to Miranda “[t]he Court tried for thirty years to ensure that coerced confessions were not admitted in criminal trials.”91 This, combined with information about widely used police interrogation tactics, called for a remedial blunt instrument the acceptable inci­dental effect of which is to sometimes trigger Fifth Amendment protections in cases where the right to avoid self-incrimination is not truly implicated.

The Court likely straddles the boundaries of its Article III power in promulgating prophylactic rules, as many of these rules directly discipline state law enforcement practices.

As such, because the Supreme Court lacks the jurisdiction to promulgate state law en­forcement procedures, but only to announce constitutional limitations on those procedures, prophylactic rules are best rationalized as rules of constitutional logistics that are necessary to effectuate the substantive protections the Constitution affords, and thus fall within the province of the Court to impose on states through the Fourteenth Amendment. 92

Unsurprisingly, then, the Court’s  re­ cent treatment of the Miranda rule reinforces the characterization of it as a prophylactic constitutional rule.

As Professor Caminker has discussed,93 the Court recently in Dickerson u. United States94 faced the question of whether the rule announced in Miranda was a “constitutional rule,” or a non­ constitutional rule the type of which Congress may supersede by statute.95

There, the district court suppressed evidence against Dickerson on Miranda grounds, despite Congress’s 1968 passage of 18 U.S.C. § 3501, the intent of which was to legislatively over­ rule Miranda by requiring the exclusion from evidence only con­fessions coerced-in-fact.96

The Fourth Circuit reversed the district court’s suppression, ruling that Miranda was not a constitutional rule, and therefore that it was validly superseded by§ 3501. 97

The Supreme Court disagreed.

After seeming to hedge on the issue of whether Mirandizing arrestees is itself constitutionally required, Justice Rehnquist speaking for the Court asserted that “Miranda announced a constitutional rule.”98

The remainder of the opinion brings into relief precisely what the Court meant by “constitutional rule.”99

First, the Court discussed the dissent’s view that Miranda represents judicial over­ reaching because it imposed on state law enforcement limitations exceeding what was necessary to satisfy constitutional require­ments. 100

Noting that Miranda was a response to “the advent of modern custodial police interrogation,”101 the majority responded by noting that the Miranda “constitutional rule” was borne of the fact that “reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking an involuntary custodial confes­sion, a risk  that  the  Court [in  Miranda] found unacceptably great.”102

In concluding that Congress could not overrule Miran­da, the Dickerson Court necessarily announced the Miranda rule to be of constitutional status, even if not the product of pure con­stitutional interpretation.

Other examples of prophylactic rules abound.

For example, Pro­fessor Klein has discussed the Court’s creation of  prophylactic rules  to determine  whether  searches  are  “reasonable”  for Fourth Amendment  purposes,103 and Professor Strauss has discussed prophylactic rules  that  protect  First  Amendment  rights. 104

In­deed, fortuitously, the Court very recently announced a prophylac­tic rule for the specific purpose of ensuring fair adjudication in appellate courts.

In Caperton u. A.T. Massey Coal Co., Inc.,105 a West Virginia jury found Massey liable under various common­ law theories and returned for Caperton a $50 million award. Knowing that state Supreme Court Justice Brent Benjamin would sit  to hear Massey’s appeal, Massey’s chairman donated $3 million to Benjamin’s reelection campaign, a total that exceeded all other contributions for Benjamin combined.

In the ensuing appeal, Benjamin refused to recuse himself; he and his fellow justices then reversed the jury’s verdict.

The U.S. Supreme Court granted certiorari 106 on the issue of whether Benjamin’s refusal to recuse himself worked a denial of Caperton’s due process right to a fair appeal, even though Benjamin had no direct financial stake in the outcome of the appeal.

In answering in the affirmative, the Court first noted its traditional position that “most matters relating  to  judicial  disqualification [do] not rise to a constitutional level,”107  and  that “(p]ersonal bias or prejudice ‘alone [is] not [a] sufficient basis for imposing a con­stitutional requirement under the Due Process Clause. “‘108

How­ever, as a prelude to its expansive holding, the Court then noted that “[a]s new problems have emerged … experience teaches that the probability of actual bias on the part of the judge or decision­ maker … [can be] too high to be constitutionally tolerable.”109

It then discussed the two categories of cases where the Court  has held that recusal is constitutionally mandated: cases wherein a judge has a direct financial interest in the litigation, or in the con­tempt context, where the judge, although having no financial in­ terest, was “challenged because of a conflict arising from his participation in an earlier proceeding.”110

After noting that the context of judicial elections was a novel one vis-a-vis the recusal context, the Court tackled the question of whether Massey’s “pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias.”111

The Court began answering this question by discussing the per­sonal introspection of the judge, which governs the question of re­cusal in the first instance, and by noting that “[t]here are  in­ stances when the introspection that  often  attends  this  process may reveal that what the judge had assumed to be a proper, con­trolling factor [in her decision] is not the real one at work”:112

The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate pro­tection against a judge who simply misreads or misappre­hends the real motives at work in deciding the case.

The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief.

In lieu of exclusive reliance on that personal inquiry, or on ap­pellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. 113

From these premises, the Court declared that “[d]ue process re­ quires an objective inquiry into whether the contributor’s influ­ence on the election under all the circumstances ‘would offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true”‘ between the part ies. 114

The Court then concluded that the risk that Massey’s influence “en­gendered actual bias” was “sufficiently substantial” such “that it must be forbidden if the guarantee of due process is to be ade­quately implemented.”115

Although the Court in Caperton did not employ the phrase “prophylactic rule” – it rarely does – Caperton no doubt establishes one. Indeed, its formulation perfectly parallels the logic of Miran­da.

The Court’s decision turned on the reality that, in some con­texts, bias-in-fact is virtually impossible to detect and prove.

That is, because “[t]he judge’s own inquiry into actual bias … is not one that the law can easily superintend or review,” giving force to the procedural due process rights of litigants in these contexts re­ quires the use of an objective rule, one that will be triggered regardless of whether there is any actual bias in a given case, and thus regardless of whether the respective litigant is denied a fair tribunal.116

In short, decisions such as Miranda and Caperton, as well as descriptive scholarly work discussing prophylactic rules generally, reveal that such rules arise when the Court deems them necessary  to protect core constitutional rights, and narrower rules  would  yield an unacceptable degree of under-protection.

Or, as Professor Landsberg puts it, prophylactic rules are “designed  to correct for the ineffectiveness of more direct prohibitions”; the ineffectiveness of a direct prohibition “stems in part from the human tendency to stretch compliance with core rules and in part from the difficulties of detecting and punishing violations of many core rules.” 117

By now, then, it should be fairly clear how the logic of prophylactic rules applies to the context of judges misusing  precedent-striping to forgo thorough or fair adjudication of appeals, the subject to which I now turn.

GETTING TO THE PROPHYLAXIS

The legitimacy of prophylactic rules is not the focus of this article; that is, important issues such as whether the Court’s crea­tion of them is ultra vires, 11 8 or infringes on states’ rights.119

Rather, because prophylactic rules are an entrenched aspect of con­stitutional law, 120 it is only natural to consider whether a new prophylactic rule is warranted in circumstances presenting the same exigencies as in cases like Miranda and Caperton.

If, empir­ically speaking, courts’ misuse of precedent-stripping is as system­ically pernicious as the interrogation methods at issue in Miranda, and if such harm is as equally difficult to prove in individual cases such that requiring litigants to prove it would work an under-protection of procedural due process rights in the appellate courts, it follows that a prophylactic rule against precedent­ stripping is justified.

This syllogism, of course, depends on a premise that hereto I have asked the reader to assume: that the full and fair adjudication often denied by courts’ misuse of precedent-stripping implicates a cognizable procedural due process interest. While it may seem obvious to most readers that it does, it may not to others.

Of course, the reporters are replete with the aspirational platitudes about “fairness” that are grist for preliminary-round moot court arguments, or for briefs by pro se litigants claiming unfair process.121

To invoke this question-begging language to define the contours of the right I claim exists might seem facile and insuffi­cient to some. As such, before continuing with the analogy with Miranda and with the discussion of the proposed  prophylactic rule, I discuss briefly why procedural due process doctrine in its current formulation necessarily gives rise to a  right of appellants  to a full and fair adjudication of their appeals, and how such fair­ness is denied when judges engage in the practices discussed above.

The Fifth Amendment provides that no person shall “be deprived of life, liberty, or property, without due process of law” by the federal government.122

Similarly, the Fourteenth Amendment provides that no state may “deprive any person of life, liberty, or property, without due process of law.”123

While the Fourteenth Amendment, of course, applies only to the states, the general consensus is that the Due Process Clause of the Fifth Amendment imposes the same constraints on the federal government as the Fourteenth does on the states.124

As such, although a large majority of Supreme Court due process case law deals with the Four­teenth Amendment, such does not diminish its applicability to the conduct of the federal courts.

Neither amendment tells us what specific interests are pro­tected; rather, for purposes of procedural (as opposed to substan­tive) due process, the interests protected are those created by “independent sources,” usually statutes.125

As the Court has put  it,  the “dimensions” of cognizable interests are “defined by existing rules or understandings … that secure certain benefits and that support claims of entitlement to those benefits.”126

Thus, for ex­ample, although the poor enjoy no substantive constitutional right to welfare benefits, a state may not discontinue such benefits without providing recipients the process established by the respec­tive state for determining eligibility; thus, welfare benefits may be a cognizable property interest for purposes of procedural due process.127

In 28 U.S.C. § 1291 Congress granted to the federal appellate courts jurisdiction over all appeals from “all final decisions of the district courts of the United States.”128

While the statute does not expressly bestow upon federal court litigants the right to bring direct appeals in every case, the Supreme Court has read § 1291 as giving rise to “appeals as of right .”129

The Court has invigo­rated that right by asserting that when an appellant exercises an appeal as of right, procedural due process translates into a right to an appeal that counts.

For example, in Douglas  v. California,130 the Court held that states must provide indigent appellants with counsel because doing so is necessary to make the  appellate process “meaningful.”

In Evitts v. Lucey,131 the  Court  extended the reasoning of Douglas by holding that the mandate of Douglas is not satisfied if appellate counsel’s performance is exceedingly poor.

The Court emphasized that it is not enough to allow a person to appeal when they have the right to do so under state law. Rather, due process requires states to take extra  steps  to ensure that the appeal  is “more  than  a ‘meaningless  ritual.”‘132

Further, in holding that indigent appellants have a right to a free copy of lower court transcripts, the Court stated in Griffin v. Illinois, that when appeals are taken as of right, due process requires the pro­vision of any resource necessary to make the appellate process “adequate  and effective.”133

Indeed, recently in Caperton, the Court premised its procedural due process holding on the axiom that “[a] fair trial in a fair tribunal is a basic requirement of due process.”134

Given that the Court went on to find a denial of due process in the West Virginia state appellate process, the axiom obviously applies in the appellate context, and obviously may be implicated when judges use their power in ways that cast suspi­cion on the fairness of an appeal, even if prejudice is not manifest.

When a court fails to fully adjudicate an appeal, it denies the appellant the process to which she is due; this should be so ob­vious as to seem almost tautological.

When a court either pre­sumes an appeal to be meritless because of its nature, or knowing­ly forgoes formal resolution of an issue properly before the court due to a desire to truncate thorough consideration of the appeal, it denies the appellant full and fair adjudication of  her  arguments, and therefore the appeal becomes either a “meaningless  ritual,” or at the very least, the appellate process  ceases to be “effective” in the manner arguably contemplated in decisions like Griffin.

Re­member that Evitts teaches that it is not sufficient for due process purposes for the government to go through the motions of provid­ing some appellate process to a litigant if the  government’s failure to provide that litigant with lower court transcripts results in a failure to subject lower court conduct, or the principles that in­ spired that conduct, to  rigorous  and  thorough examination through the adversarial process. 135

So too due process is denied when such absence of rigorous and thorough examination is not  the product of a denial of effective counsel (as in Evitts) but rather the result of the respective court’s decision not to perform it before disposition; under either scenario, the litigant does not enjoy the systemic vigilance that most characterizes true “adjudication” of legal issues and arguments.

With precedent such as Griffin, Evitts, and Douglas forming the backdrop, Caperton is best viewed as confirmation that procedural due process requires a fair adjudication of appeals taken as of  right,

but also a declaration that prophylactic rules to ensure pro­ tection of the right are appropriate to limit the discretion of judges to engage in conduct that threatens the procedural due process protections of litigants.

As noted above, this feature of Caperton squares it with the archetypal prophylactic reasoning of Miranda; these two decisions are models for a prophylactic rule in the precedent-stripping context.

My suggestion that the term “adjudication” connotes a mini­mum threshold of formality and fairness with which cases are  to be decided-much as a product of Congress is not termed “legisla­tion” if it is not vetted through the  procedural formalities  making it deserving of that status-is reinforced by the Court’s non­ delegation case law.

For example, in Northern Apeline Construc­tion Co. v. Marathon Pipe Line Co., the Court declared unconstitu­tional the broad grant of jurisdiction to non-Article III bankruptcy courts to render final judgment on state law claims because such a grant of jurisdiction “impermissibly removed most, if not  all, of ‘the essential attributes of the judicial power’ from the Art. III dis­ trict court [s).”136

For the most part, the Court’s conclusion of un­constitutionality was premised on the fact that such a  broad grant of jurisdictional power to the bankruptcy courts allowed those courts to decide the common law rights of the claimants without providing them all of the safeguards of Article III adjudication .137

In this sense, the Court made clear that the non-delegation doc­trine is not only concerned with separation-of-powers, but also the procedural rights of litigants (or, perhaps to put  more correctly, that separation-of-powers principles exist primary to protect indi­vidual liberty, and are therefore the two concerns are inextricably intertwined).138

The Court expounded on Northern Pipeline in Commodity Fu tures Trading Commission v. Schor. 139 In reviewing whether Con­gress  could  grant  the Commodity  Futures  Trading Commission the jurisdiction to “entertain” state law counterclaims in its ad­ ministrative proceedings, the Court noted:

Article III, § 1, serves both to protect the role of the indepen­dent judiciary within the constitutional scheme of tripartite government, and to safeguard litigants’ right to have claims decided before judges who are free from potential domination by other branches of government. [T]his guarantee serves to protect primarily personal, rather than structural, inter­ ests.”140

While neither Article III nor the Schor opinion directly describe a right of appellants to enjoy a minimum threshold of thorough­ness in presenting their arguments to the courts, the point is that Article III, by the very fact that it establishes power that is “judi­cial,” also establishes the right of litigants to enjoy all the benefits of the exercise of judicial power.

If we accept the premise that the power of the courts is to “say what the law is”- rather than to say what it might or should be – it is not a great leap to argue that Article III promises to litigants a process that disposes of their claims only on premises deserving of the status of “law.”

If a judge, in invoking propositions or principles in disposing of cases, is, at the same time, unwilling to commit to those propositions as binding statements of “what the law is” for future like cases, he is (unless the case does truly qualify as utterly redundant) necessari­ly admitting a lack of confidence that his premises are truly law.

Instead, he is declaring “this is what the law might be were we to decide this issue definitively.” As such, it is worth asking: How is the resulting opinion functionally different than a constitutionally forbidden advisory opinion?

Regardless of where one finds the specific contours of the right at issue, the evidence accumulated over the past several decades strongly suggests the existence of an unofficial policy, slowly nur­tured (intentionally or not) by judges who rightly feel overworked, of using precedent-stripping rules to dispose of appeals in circums­tances where such appeals, given their factual or legal nuances, should be disposed of in precedential opinions.

The apparent fre­quent misuse of precedent-stripping, combined with the peculiar insidiousness of such misuse given the insular nature of the judi­ciary, amounts to a systemic threat to appellants’  due  process rights by, in the name of pragmatism, disposing of appeals with­ out full and thorough adjudication.

Further, the practically in­surmountable burden of proving such unfairness in specific cases makes unrealistic the notion that a specific litigant should be re­quired to prove that the relevant judges did in fact cut corners.

These realities – the empirical conspicuousness of the government conduct at issue and the difficulty of proving it in specific cases­ inspired the Court’s Miranda and Caperton decisions, and the log­ic of those decisions supports the creation of a prophylactic rule that “over-protects” appellants’ right to procedural due process by forbidding precedent-stripping in all cases.

One might respond that if prophylactic rules exist only to the extent they are necessary to protect core rights, is not a remedy less drastic than an all-out prohibition of precedent-stripping more appropriate?

In this vein, an alternative remedy might be a new rule of burden allocation: a litigant could establish a prima facie case of arbitrary appeal disposition if a precedent-stripping rule was used to dispose of her arguments.

The prima facie case of arbitrariness could be rebutted if the other party (probably the court as respondent) could demonstrate, say, that no reasonable judge could have, given existing precedent, decided the case at hand differently, or that no reasonable judge could have concluded that the given appeal implicated no refinement of governing law.

Obviously, such a process would be unrealistically cumbersome, and would exacerbate the very efficiency problems the courts are attempting to alleviate via their current precedent-stripping prac­tices. Further, such an idea poses the obvious problem of who would enforce it meaningfully.

Assuming the rule did not rely on the unrealistic expectation that the Supreme Court would grant certiorari in every relevant case, it would mean that the very appellate court that violated the rule would be responsible for ensuring its integrity on petition for rehearing.

Although rehearing pa­nels are usually comprised of a different group of  three  judges than the panel originally deciding the case, one could not be blamed for wondering whether the second  panel members,  who are likely responsible for nurturing – or at least entertaining for purposes of collegiality – the court culture endorsing the misuse of precedent-stripping, can be relied on to rigorously enforce such a rule.

A better argument is that the prophylactic rule should  simply take the form of the Supreme Court forbidding the federal appel­late courts from stripping their dispositions of precedential value.

Not only would this solution prevent the administrative burdens noted above, it would cure the systemic threat  to  due process while minimally affecting the primary stated purpose of non­ publication – to keep the reporters uncluttered with opinions that offer nothing new.

Were a  circuit court  prohibited from stripping a given opinion of precedential effect, the court could still desig­nate the opinion as “unpublished,” meaning that the court  did  not at the time of disposition deem it to represent any refinement or clarification of governing law.

Such designation would serve as an easy way of delineating for practitioners that case law deserving of focus from that less so deserving, while still allowing attorneys to research and rely upon the unpublished decisions at the margins should such cases represent misapplication of unpublication rules in the first place.

Indeed, as noted before, if the unpublished dis­position is not of such value, its citation would be pointless.

CONCLUSION

The federal courts are not packed with unprincipled judges seeking to deny litigants due process.

[LIT disavows this authors statement, the facts and evidence are that judges do seek to deny litigants due process].

However, evidence strongly suggests that over the past four decades, an attitude within the federal appellate courts has slowly developed around precedent­ stripping that any use of the practice to further efficiency interests is not without virtue, even if not formally supported by the respec­tive local precedent-stripping rules.

The exigencies that have nurtured this attitude are very real, but the way courts have dealt with them-by rationing the deliberateness which should charac­terize disposition of all appeals to only certain cases or certain ap­ pellants-is obnoxious to procedural due process.

Using the logic of Supreme Court prophylactic-rule case law as a guide, the con­ spicuousness of inappropriate precedent-stripping as a systemic problem combined with the difficulty of proving such impropriety in individual cases arguably supports the creation of a prophylac­tic rule prohibiting precedent-stripping.

As a final note, I must register my appreciation for the reality that the federal courts currently face extreme  practical  burdens. No doubt, much of the misuse of precedent-stripping discussed above is the product of judges’ attempts to manage an ever in­ creasing workload without correspondingly increasing resources.

Some of these judges have admirably recognized the problem and have proposed remedial  alternatives  to  precedent-stri pping.141 But even if we assume that the good-faith  triage that characteriz­es a fraction of the justice-rationing actually describes all inci­ dents of inappropriate precedent-stripping, such is cold comfort to litigants who are denied thorough adjudication of their  argu­ments.

The question, then, becomes, how should  we respond  to the problem? By over-sympathizing with judges’ complaints that they are overworked, and cavalierly 142 accepting “efficiency” as the primary determinant in whether litigants  receive  their  due process?

Or do we insist that the courts no longer enable Con­gress’s failure to address the problem via its current precedent­ stripping practices, and further insist that Congress increase the number of federal appellate judgeships or decrease the federal courts’ exclusive jurisdiction?.

The best answer is that we insist that institutions do their re spective jobs, and that, when they fail to, we do not excuse them with trite responses of complacent “realism” or “pragmatism.” The job of the courts is to fully and fairly adjudicate all issues before them.

It is Congress’s job to ensure that the courts have the re­sources they need to do that job adequately; this is especially true given that it is Congress that has repeatedly burdened  the  courts by creating new remedies and by statutorily increasing the avail­ability of the federal venue.

As such, perhaps things  must  get worse before they get better. The body responsible for ultimately fixing the problem is one that responds only to  pressure  from those experiencing the practical drawbacks of bad policy.

If precedent-stripping ends but nothing else changes, the wheels of justice will no doubt slow. Perhaps it is only then that sufficient pressure on Congress will arise so as to motivate reform.

United States Court of Appeals

For the Seventh Circuit

219 South Dearborn Street Chicago, Illinois 60604

February 11, 2004

Hon. Samuel A. Alito, Jr. United States Court of Appeals Room 357, 50 Walnut Street
Newark, NJ 07101

In re: Proposed Fed. R. App. P. 32.1 Dear Judge Alito

CASELOAD FORCING TWO-LEVEL SYSTEM FOR U.S. APPEALS

By WILLIAM GLABERSON

Published: March 14, 1999