Unpublished Opinions

I see no reason not to allow citation of unpublished opinions in federal court. Rather, I see no reason to have this entire class of opinions that are mostly written by staff and that are explicitly intended to be poor substitutes for the real thing. If federal judges have too many cases as it is, Congress should expand their numbers and their pay.

On this topic, I was interested to see Patrick Schiltz's 66-page paper commenting on the proposed federal rule that would allow citation of unpublished opinions. I was especially caught by this passage:

From page 25 [repeating an argument from the rule's supporters]:

A judge who claims that he sometimes needs to go through 70 or 80 drafts of an opinion before getting every word exactly right has confused the function of a judge with the function of a legislator. Judges are appointed not to draft statutes, but to resolve concrete disputes. What they hold is law; everything else is dicta. Lower court judges understand this; they know how to read a decision and extract its holding.

This must be referring to Judge Alex Kozinski, who is a famous opponent of allowing citation of unpublished opinions, and who has written on many occasions that he goes through many drafts (see here, here, here, or here).

With all due respect to Kozinski, one doesn't need anywhere near 50 drafts, let alone 70. After just a few drafts, the returns to further editing become quite marginal, and may even become negative, as one begins to second-guess sentences and paragraphs that were perfectly good to begin with. And at least some of Kozinski's many drafts are done for extra-legal purposes, such as humor. Consider the United States v. Syufy opinion, where Kozinski worked some 204 movie titles into an opinion that was about a film-house owner. This sort of thing is fun, but totally unnecessary, especially for someone who complains about being overworked.