In Defense of Unpublished Opinions
![handle is hein.journals/ohslj60 and id is 191 raw text is: In Defense of Unpublished Opinions
THE HONORABLE BOYCE F. MARTIN, JR.*
What role in today's legal environment should the unpublished opinion
play? In this Article, Judge Martin explores both the explosion of litigation that
is increasingly taxing the federal courts' resources and the stopgap method of
the unpublished opinion. Utilizing published resources as well as his twenty-plus
years on the federal bench, he argues that the unpublished opinion will help to
conserve judicial resources, will not result in a significant loss to the corpus of
federal law, and will perhaps help to streamline thejudicial process.
In my view, multiplied judicial utterances have become a menace to
orderly administration of the law. Much would be gained if three-fourths (maybe
nine tenths) of [the opinions] published in the last twenty years were utterly
destroyed. Thousands of barren dissertations have brought confusion, and often
contempt.
-Justice McReynolds1
I. INTRODUCTION
Justice McReynolds wrote those words more than sixty years ago, but his
sentiments ring true today. Appellate judges continue to labor under the weight
of tens of thousands of appeals every year, and our multiplied utterances
would increase beyond all reason were we forced to publish all our opinions.
When I came on the bench in 1979, we were at Volume 602 of the F.2d.
Now we are into the F.3d. The last time I checked my overburdened shelves, we
were pushing past Volume 133. In 1996 alone, we went from 73 F.3d to 103
F.3d, filling more than 45,000 pages with appellate opinions. At this rate, we will
go into the F.4th sometime around 2025. This Article is not about judges' lack of
shelf space for the kudzu-like growth of Federal Reporters, but the growth is
indicative of too much written material creating too little new law.2 As
* Chief Judge, United States Court of Appeals for the Sixth Circuit; A.B. 1957, Davidson
College; J.D. 1963, University of Virginia School of Law. This Article is the product of a
number of discussions in Louisville, Cincinnati, and as we drove between the two with my law
clerk Brendan Healey, without whose help this Article would not have been completed.
I Thatch v. Livingston, 56 P.2d 549, 549-50 (Cal. Dist. Ct. App. 1936) (quoting Justice
McReynolds).
2 See Hon. Philip Nichols, Jr., Selective Publication of Opinions: One Judge's View, 35
AM. U. L. REV. 909, 913 n.13 (1986) (noting rapid growth in publishing rate during his tenure
on the federal appellate bench and that [t]his was when the Judicial Conference selective
publication plans had been several years in effect. Without them, one can only guess what the](ViewImageLocal?handle=hein.journals/ohslj60&div=12&collection=&method=preview&ext=.png&size=3)
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In Defense of Unpublished Opinions
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