I apologize for the light posting--it's because it's the holidays and I am studying for exams. It must be slow these days, though, since the mighty Instapundit (whom we've met!) has thrown us two links the last two days.



From the Chicago Tribune yesterday: Courts move toward allowing citation of "unpublished" rulings.

About 80 percent of decisions issued by the federal appeals courts are tickets good for one ride: They decide only the particular case and do not establish binding precedents.



In many parts of the country it is unlawful even to mention these one-time rulings in legal papers submitted in later cases, and judges have been very resistant to change the policies.



"We may have decided this question the opposite way yesterday," Richard Arnold, a federal appeals court judge in Arkansas, wrote in describing the current system, "but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday."



But the prohibitions may be easing soon. On Jan. 1, the federal court of appeals in the District of Columbia and the Texas Supreme Court will reverse their restrictions on citing these so-called unpublished decisions. Systemwide change seems to be on the horizon too.

This is huge. I'm not yet sure where I come down on this. On the one hand, there is something to be said for uniformity in law. On the other hand, there is something to be said for allowing judges to focus on the few decisions that do become precedent, rather than requiring them to worry about every case they hand down, possibly resulting in sloppy, but binding, decisions all around. Of course, in a self-interested way, this also means more work law clerks! But these are not profound arguments. I did find this bit in the article particularly compelling:

"Non-precedential" is an awkward word, but it is more accurate than "unpublished," which technology has turned into a misnomer. Not long ago, most unpublished decisions not only were absent from the law books but also were generally unavailable. With the advent of legal databases and courts' own Web sites, almost everything issued by appeals courts is widely and almost instantly available.



And since September 2001, "unpublished" decisions have been collected and published in the literal sense, in books called West's Federal Appendix.



The general availability of unpublished decisions has eliminated a crucial objection to allowing them to be cited. Before technology leveled the playing field, it was considered unfair for institutional litigants, such as corporations repeatedly sued on similar claims, to be able to collect and selectively cite from a body of law unavailable to their adversaries.

In an unrelated point, this is further evidence that the Segway has a long way to go before it is "bigger than the Internet."

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