Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals

Abstract

For centuries scholars have lamented the rapidly expanding collection of case law, fearing that storing and processing this information would eventually become impossible.In the early 1970s, in response to these concerns, the Federal Circuits developed and implemented a variety of plans limiting publication to relatively few of the thousands of opinions they produced each year, and restricting citation to unpublished opinions.Limiting publication has had several benefits.First, costs are reduced and fairness increased: the fewer opinions published, the lower the cost of legal research and the less significant disparities in resources are in determining legal outcomes.And, judicial efficiency is increased: because judges need not spend time perfecting opinions that will not be published, they have more time to spend on those that will be.However, this Comment argues, time has shown that unpublished does not necessarily mean unimportant; unpublished opinions are frequently used even if citation to such opinions is prohibited.Moreover, with the advent of the computer, the world of legal research has changed dramatically.Accordingly, this Comment critically examines the original justifications for limiting the publication of federal appellate opinions, concluding that many of the limited publication/nocitation plans currently in use are suboptimal in light of modern digital storage and research capabilities.Finally, the Comment proposes a solution in the form of a model rule focusing on setting appropriate guidelines for the availability and citation of unpublished opinions.1.

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