Unpublished Opinions*
“In both the Fifth and Eleventh Circuits, unpublished opinions are not distributed to Westlaw or Lexis. These opinions, therefore, are truly invisible. A copy of an unpublished decision may, of course, be requested by contacting the office of the court clerk, but the opinions are not electronically searchable, meaning that lawyers must know exactly what case they are seeking. An opinion must be requested by case name or number, and then someone must pay for a copy of the opinion. [FN19] In the Fifth Circuit, lawyers may freely cite unpublished opinions. The problem is that the lawyers must first locate the desired opinion. And even if found, citations may be ineffective since the Fifth Circuit, like the Eighth, denies unpublished opinions the status of "precedent." [FN20]”
Footnotes
- The difficulty of obtaining unpublished opinions from the Fifth and Eleventh Circuits is something that is not
known even to judges on other courts of appeals. Thus, for example, Judge Arnold, who is critical of the practice of
nonpublication, claimed that "unpublished" does not mean "secret" because "anyone may gain computer access to any
opinion." Richard S. Arnold, “Unpublished Opinions: A Comment,” J. App. Prac. & Process, 1, 219, (1999). Judge
Arnold's confidence is misplaced with respect to opinions in the Fifth Circuit, where computer access is not possible,
and obtaining opinions is not costless.
- Fifth Circuit Rule 47.5.4 provides that unpublished opinions issued after January 1, 1996, are "not precedent"
but are considered "persuasive."
*Quoted from: David R. Dow and Bridget T. McNeese, “Invisible Executions: A Preliminary Analysis of Publication Rates in
Death Penalty Cases in Selected Jurisdictions,” Texas Journal on Civil Liberties & Civil Rights, 8, 149 (2004).
For the full text of the above article and more information on the non-publication of court documents, see: http://www.secretjustice.org (accessed April 16, 2004). Tulanelink thanks Dr. Elizabeth J. Pawlak for providing this reference. Further debate on the subject is available at: http://www.nonpublication.com.
According to Suzanne Blonder, senior counsel at HALT, a Washington, D.C., consumer-oriented legal advocacy organization (Help Abolish Legal Tyranny, http:/www.halt.org), "Louisiana's system of judicial oversight is one of the most secretive in the country. In an era that embraces principles of sunshine and transparancy, it's shameful that the state's system for monitoring our most powerful government officials is designed to shut out the public."
- Bruce Alpert, "On the Hill; News from the Louisiana delegation in the nation's capital," The Times-Picayune, New Orleans, May 11, 2008, National, p. 7.
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