As readers of this blog now know, I object to the idea that a court can deprive itself of the weight of precedent in future cases by not issuing an opinion. It seems to me that one of the substantive limitations of federal jurisdiction is that when a judge issues an opinion, future judges are bound by that opinion as precedent, even if they are less sympathetic to the parties in future cases. This is a core feature of the rule of law.
In my opinion, unpublished opinions have no weight of precedent and are inconsistent with the rule of law. The Federal Rules of Appellate Procedure need to be revised to require federal appeals court judges to give equal precedential weight to unpublished opinions as to published opinions.
Abbe Gluck, the Alfred M. Rankin Professor of Law and founding chair of the Solomon Center for Health Law and Policy at Yale Law School, contributed to the unpublished Chosen conducted a very impressive empirical study. Her research found that in some cases they appeared to place a heavy burden on disadvantaged groups in society. Below is a link to her research.
Is it not equal if it is not published? An Empirical Test of the 87% Non-Publication Rate in Federal Appeals
Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals
