Non-publication

Non-publication of legal opinions is the practice of a court issuing unpublished opinions. An unpublished opinion is a decision of a court that is not available for citation as precedent because the court deems the case to have insufficient precedential value.

In the system of common law, each judicial decision becomes part of the body of law used in future decisions. However, some courts reserve certain decisions, leaving them "unpublished", and thus not available for citation in future cases. It has been argued that non-publication helps stem the problem of too much written material creating too little new law. Specifically, the number of federal appeals filed annually grew from 23,200 to 33,360 between 1980 and 1985, and 55,000 federal appeals were filed in 2000. Conversely, studies have shown how non-publication can distort the law.

Selective publication is the legal process by which a judge or justices of a court decide whether or not a decision is to be published in a reporter. "Unpublished" federal appellate decisions are published in the Federal Appendix. From 2000 to 2008, the U.S. Court of Appeals for the 4th Circuit had the highest rate of non-publication (92%), and more than 85% of the decisions in the 3rd Circuit, 5th Circuit, 9th Circuit, and 11th Circuit went unpublished.Depublication is the power of a court to make a previously published order or opinion unpublished. The California Supreme Court may depublish opinions of the California Courts of Appeal.

In 1964, the Judicial Conference of the United States recommended that federal appellate courts publish only those decisions "which are of general precedential value." Since 1976, every federal appellate court has adopted rules limiting the publication of opinions. Most federal appellate courts publish less than half of their decisions on the merits. As of the year 2004, some 80% of United States Courts of Appeals decisions are unpublished. In Anastasoff v. United States, the U.S. Court of Appeals for the 8th Circuit struck down non-publication, but the decision was later declared moot. In Hart v. Massanari, the U.S. Court of Appeals for the 9th Circuit upheld non-publication as constitutional.

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