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Thursday, October 05, 2006
Law - Determining the precedential value of "unpublished" opinions
Howard Bashman of How Appealing, in an entry from last evening, points to
an article by Scott E. Gant in the current issue of Boston College Law Review,
titled "Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1."
Bashman writes: "The article echoes a point that I too have advanced * * * namely, that determining whether a given opinion creates precedent is a decision best made in hindsight, rather than when an appellate opinion is issued," or, as he wrote in 2002, "Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it."
Here is a quote from the abstract to Gant's article:
This article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.
Posted by Marcia Oddi on October 5, 2006 04:11 PM
Posted to Courts in general