AuthorMcAlister, Merritt E.

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called "unpublished decision" has overtaken the federal appellate courts in response to a caseload volume "crisis. " These are often short, perfunctory decisions that make no law; they are, one federal judge said, "not safe for human consumption."

The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate process in which judicial staff attorneys resolve appeals without oral argument or meaningful judicial oversight. For the system's most vulnerable participants, the promise of an appeal as of right often becomes a rubber stamp: "You lose. "

This work examines the product of that second-class appellate justice system by filling two critical gaps in the existing literature. First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts' continued--and increasing--reliance on unpublished decisions has no correlation to overall caseload volume. Second, it examines the output of the second-tier appellate justice system from the perspective of the litigants themselves. Relying on a procedural justice framework, this work develops a taxonomy of un published decisions and argues for minimum standards for reason-giving in most unpublished decisions.

TABLE OF CONTENTS INTRODUCTION I. THE HISTORY, DEVELOPMENT, AND USE OF THE UNPUBLISHED DECISION A. A Short History of the Unpublished Decision B. The Widespread Use of the Unpublished Decision II. PROCEDURAL JUSTICE VALUES AND THE APPELLATE PROCESS III. A PROCEDURAL JUSTICE TAXONOMY OF UNPUBLISHED DECISIONS A. The Publishable Decision B. The Memo Decision C. The Avoidant Decision D. The Kafkaesque Decision IV. REASON-GIVING IN UNPUBLISHED DECISIONS A. The Argument Against Kafkaesque Decisions B. The Argument for a Minimum Reason-Giving Requirement CONCLUSION INTRODUCTION

During the first week in October 2016, the U.S. Court of Appeals for the Fourth Circuit issued 104 decisions in pending appeals. (1) Two of those decisions made law; (2) the rest, which were "unpublished" dispositions, did not. Three cases received oral argument. Sixty-nine of the 104 dispositions involved pro se appellants pursuing civil rights claims, seeking disability benefits, launching a variety of collateral attacks on state and federal convictions, seeking sentence reductions, pursuing asylum claims, and bringing unidentified "civil" actions. Of the decisions the court issued in pro se appeals that rejected the appeal (or, once, that vacated the judgment (3)), only twenty-one of sixty-nine revealed any independent decisionmaking by the appellate court. (4) For the rest--or in 70% of the pro se appeals resolved that week--the Fourth Circuit either affirmed "for the reasons stated by the district court" or simply found "no error" (without further elaboration). (5)

If that's shocking, it shouldn't be. The Fourth Circuit is not an outlier. Nearly 90% of merits decisions from the federal courts of appeals look nothing like what law students read in casebooks. (6) Over the last fifty years, federal courts have increasingly relied on the so-called "unpublished decision" to combat a caseload volume "crisis." (7) These decisions are not precedential and make no law; (8) they are often short, perfunctory, unsigned opinions drafted for the benefit of the parties, not the public. (9) Even their greatest judicial defender once referred to unpublished decisions as "not safe for human consumption." (10)

The crisis that created this inferior class of appellate work, however, has abated; today, the caseload volume of the federal courts of appeals appears to be receding. (11) But the inferior work remains--and, worse yet, it has birthed an inferior appellate justice system. (12) In seven of the twelve geographic circuits, unpublication rates hover at or over 90%. (13) Judicial staff attorneys--a position lacking the cachet of a federal clerkship--review and resolve appeals destined for nonpublication without significant judicial oversight or the benefit of oral argument. (14) Judges are too busy to do more than (hopefully) ensure the correct result in these cases.

Traditional appellate process--including oral argument and judicial scrutiny--continues for the system's haves. But for its have-nots, the promise of an appeal as of right has become little more than a rubber stamp: "You lose." Data, historical accounts, and anecdotal evidence all suggest that the unpublished decision revolution aligns closely with the rise of pro se appeals--the appellate justice system's "have-nots." Appeals from these vulnerable litigants occupy half of the federal appellate docket, (15) but they surely receive far less than half of judges' attention. Instead, resource-strapped courts shift their attention to more complex and well-lawyered civil disputes.

Unsurprisingly, the unpublished decision--perhaps the most prominent feature of second-tier appellate process--has been the target of significant scholarly criticism. (16) But much of that criticism has attacked unpublished decisions categorically. (17) That attack has failed to persuade busy courts to abandon the practice; instead, it continues to proliferate. In the meantime, the creation of the unpublished decision has led to pervasive decisional atrophy--atrophy that has been lamented but largely unexamined. Although the "lower quality of unpublished opinions may be the most important of the costs of limited publication," (18) it has been nearly forty years since any scholar seriously examined the substance of unpublished decisions, which now dominate the output of the federal courts of appeals. (19)

In September 2017, the most influential federal appellate judge--Richard Posner of the U.S. Court of Appeals for the Seventh Circuit--reinvigorated this debate by focusing our attention to what he viewed as pervasive systemic injustice over how the federal courts handle indigent appeals. After his abrupt resignation, Posner told the New York Times that "most judges regard these people"--pro se and indigent litigants--"as kind of trash not worth the time of a federal judge." (20) To highlight the problem, Posner self-published a book detailing the extent of the federal courts of appeals' reliance on staff attorneys and the "downright indifference of most judges to the needs of pro se's." (21) In Posner's view, "it [is] imperative--the imperative of basic decency--that the orders that judges issue in pro se cases, together with any supplemental documents, be complete, sufficient, and intelligible to the pro se litigants and not just to the judges." (22)

Although the controversy Posner's work stirred may have drowned out his message, (23) his indictment hit the mark. (24) Judicial indifference to the appellate system's most vulnerable litigants has become commonplace. (25) Even if Posner rightly called our attention to "the separate-but-equal appellate review that pro [se] litigants receive," (26) others have questioned how Posner's proposed solution--better and clearer judicial decisions in pro se cases--would benefit pro se litigants. (27)

This work grapples with that question by considering reason-giving across all unpublished decisions. Decisional atrophy disproportionately affects pro se litigants because their cases are more likely to receive the second-class treatment that produces the poorly or lightly reasoned unpublished decisions that Posner finds so problematic. Some features of a two-tier appellate justice system may be necessary: reliance (to some extent) on judicial staff, the use of unpublished decisions, and the reduction of oral argument, for example. For present purposes, I stipulate that some type of appellate triage system may be a wise use of judicial resources. But the question of decisional atrophy and the erosion of reason-giving in unpublished decisions deserves special attention--regardless of how we might design that triage system.

Some decisional atrophy was expected as the appellate courts abandoned lawmaking norms in their embrace of unpublished decisions. (28) In a common-law system, reason-giving is effectively lawmaking and thus an essential requirement of published, precedential decisions. (29) But in an appellate sys tem dominated by nonprecedential decisions, reason-giving can undermine efficiency goals. If a court is not establishing precedent, a reasoned explanation in an unpublished decision may take time away from work on (presumably more important) published decisions--or so the efficiency rationale for unpublished decisions goes. (30) To maximize efficiency, indeed, we might expect courts to say nothing at all when handing down unpublished dispositions.

Scholarly work in this area thus has been insensitive to these two foundational yet competing considerations: the efficiency interests that unpublished decisions may properly serve and the procedural justice effects of decisions that slam shut courthouse doors on vulnerable litigants. Although some have observed--and even lauded--the efficiency benefits of un published decisions, (31) no scholar has considered how procedural justice experiences might inform the content and process of unpublished decisions.

In "general legal parlance," "procedural justice ... refers to the fairness of a process by which a decision is reached." (32) There is a rich body of literature on normative procedural justice theory. (33) But I am more interested in a "bottom-up" (34) understanding of procedure. For that view, what matters more is "the subjective assessments by individuals [in the justice system] of the fairness of a decision making process."...

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