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captainsblogI mentioned yesterday that my hidey-hole for doing most of my off-premises work was a far-off corner of a state court library, surrounded by hundreds of volumes of something called the Federal Appendix- and that, despite practicing since the Reagan Administration, I had no idea what those books were. Now I know- and I wish I didn't.
That "Law is an Ass" stuff just got assier.
There is no rhyme or reason to how court decisions get published in this country. Despite digitalization and free online distribution, the practice mostly holds on, by its cold dead ink-stained fingers, to a duopoly of print publishers- West and Thompson- who select, highlight, annotate in word and number, and then kill trees to put their books of decisions out. State courts are a mishmash of the two publishers, but in the federal system, there have long been three main repositories of what Inspector Clouseau called "the leuggggggh." Supreme Court Reporter is the West Publishing version of all SCOTUS decisions. Federal Reporter contains many, but not all, decisions rendered at the one-step-down level of federal Courts of Appeal. Federal Supplement has some, but not even most, of the much greater body of trial-level decisions coming out of the District Courts. There are other specialized ones I'm familiar with- Bankruptcy Reporter an obvious one, Federal Rules Decisions for the worst of insomniac nights- but where does Federal Appendix fit into the body?
Uselessly, it seems- just as the body part it's named after:
The Federal Appendix is a case law reporter published by West Publishing. It publishes judicial opinions of the United States courts of appeals that have been not been selected for publication. Such "unpublished" cases are ostensibly without value as precedent. However, the Supreme Court made a change to the Federal Rules of Appellate Procedure in 2006. Now, Rule 32.1 says that federal circuit courts are not allowed to prohibit the citation of unpublished opinions issued on or after January 1, 2007.
Let's read that again. A publisher has devoted an entire series of bound books- over 350 at Wiki's last count- to publishing decisions that, by definition, are "not for publication." And nobody can stop a legal eagle from citing to them in the federal courts.
Shoot me now. Fudd v. Wabbit & Duck, LLC, 349 F.App'x 69 (2012).
----
This would be far sillier if it wasn't so important. "Precedent" is the only thing keeping one or two of the Supremes from ripping the heart out of a century of jurisprudence, from affirmance of New Deal legislation to Roe v. Wade. So it's important to know what cases have precedential value and which don't. We're likely to be facing at least a Supreme Court term, and maybe more, where nothing they do will result in such precedent- for if any of the old-guy Reagan/Bush appointees retire or perish, you can bet Obama's replacements for them will be filibustered or otherwise delayed to the dying seconds of his second term. That won't stop the Court from business, but any decision with fewer than five votes on the opinion is without precedential value. It only affirms (in the case of a 4-4 tie) or otherwise affects (any other outcome with fewer than five votes on the winning side) the dispositon of that case. So all the important stuff on the current docket, including Prop 8 and DOMA? Could wind up only affecting those particular constituencies and will have no future effect on decisions down the line.
So, as with most ties, it would feel like kissing your sister. Or in my case, I suppose, my brother.
----
Even when a decision has value as precedent, there's always the question of how much in it is to be given that effect. Scholars can get into a Santorum-like froth over how much of the text is really binding, and how much is what we call "dictum. " Fortunately, here in Buffalo, we make that easy for you.
I was checking a filing fee on the local BK website, and the home page noted that a new decision had come out. Curious as always, I read it. Down to earth, to the point, and I wouldn't want to be on the losing side in this one. Yet, after a thorough analysis of the interplay of federal bankruptcy law and state construction and insurance law statutes, and after the disposing paragraph of the case itself, I came upon an entire section labeled "DICTUM."
I'm still not sure if I should applaud or cry. Anyone who wants the cite can decide for themselves. Or wait for the eventual affirmance to be published, or rather not published, in the Federal Appendix.
That "Law is an Ass" stuff just got assier.
There is no rhyme or reason to how court decisions get published in this country. Despite digitalization and free online distribution, the practice mostly holds on, by its cold dead ink-stained fingers, to a duopoly of print publishers- West and Thompson- who select, highlight, annotate in word and number, and then kill trees to put their books of decisions out. State courts are a mishmash of the two publishers, but in the federal system, there have long been three main repositories of what Inspector Clouseau called "the leuggggggh." Supreme Court Reporter is the West Publishing version of all SCOTUS decisions. Federal Reporter contains many, but not all, decisions rendered at the one-step-down level of federal Courts of Appeal. Federal Supplement has some, but not even most, of the much greater body of trial-level decisions coming out of the District Courts. There are other specialized ones I'm familiar with- Bankruptcy Reporter an obvious one, Federal Rules Decisions for the worst of insomniac nights- but where does Federal Appendix fit into the body?
Uselessly, it seems- just as the body part it's named after:
The Federal Appendix is a case law reporter published by West Publishing. It publishes judicial opinions of the United States courts of appeals that have been not been selected for publication. Such "unpublished" cases are ostensibly without value as precedent. However, the Supreme Court made a change to the Federal Rules of Appellate Procedure in 2006. Now, Rule 32.1 says that federal circuit courts are not allowed to prohibit the citation of unpublished opinions issued on or after January 1, 2007.
Let's read that again. A publisher has devoted an entire series of bound books- over 350 at Wiki's last count- to publishing decisions that, by definition, are "not for publication." And nobody can stop a legal eagle from citing to them in the federal courts.
Shoot me now. Fudd v. Wabbit & Duck, LLC, 349 F.App'x 69 (2012).
----
This would be far sillier if it wasn't so important. "Precedent" is the only thing keeping one or two of the Supremes from ripping the heart out of a century of jurisprudence, from affirmance of New Deal legislation to Roe v. Wade. So it's important to know what cases have precedential value and which don't. We're likely to be facing at least a Supreme Court term, and maybe more, where nothing they do will result in such precedent- for if any of the old-guy Reagan/Bush appointees retire or perish, you can bet Obama's replacements for them will be filibustered or otherwise delayed to the dying seconds of his second term. That won't stop the Court from business, but any decision with fewer than five votes on the opinion is without precedential value. It only affirms (in the case of a 4-4 tie) or otherwise affects (any other outcome with fewer than five votes on the winning side) the dispositon of that case. So all the important stuff on the current docket, including Prop 8 and DOMA? Could wind up only affecting those particular constituencies and will have no future effect on decisions down the line.
So, as with most ties, it would feel like kissing your sister. Or in my case, I suppose, my brother.
----
Even when a decision has value as precedent, there's always the question of how much in it is to be given that effect. Scholars can get into a Santorum-like froth over how much of the text is really binding, and how much is what we call "dictum. " Fortunately, here in Buffalo, we make that easy for you.
I was checking a filing fee on the local BK website, and the home page noted that a new decision had come out. Curious as always, I read it. Down to earth, to the point, and I wouldn't want to be on the losing side in this one. Yet, after a thorough analysis of the interplay of federal bankruptcy law and state construction and insurance law statutes, and after the disposing paragraph of the case itself, I came upon an entire section labeled "DICTUM."
I'm still not sure if I should applaud or cry. Anyone who wants the cite can decide for themselves. Or wait for the eventual affirmance to be published, or rather not published, in the Federal Appendix.
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no subject
Date: 2012-12-11 05:28 pm (UTC)no subject
Date: 2012-12-12 01:00 pm (UTC)*snort*