Inequitable injunctions: the scandal of private judging in the U.S. courts.

• Author: Pether, Penelope
• Position: Depublishing of judicial opinions

INTRODUCTION I. ORIGINS AND CURRENT STATE OF THE PRIVATE JUDGING PRACTICES A. Unpublication 1. Origins 2. The current state of unpublication B. Stipulated Withdrawal C. Depublication II. THE CASE AGAINST PRIVATE JUDGING A. Rule of Law Problems with Private Judging B. Inequality Effects of Private Judging on Marginalized Groups C. Responses to Counterarguments III. CURRENT PROSPECTS FOR REFORM CONCLUSION APPENDIX "The scandal is such, and its evil effects are sometimes so irreparable, that the world seems to turn the wrong way...." (1)

"Blindness to the supplement is the law." (2)

INTRODUCTION

Contrary to popular belief, the United States courts have not operated under the system of precedent characteristic of common law legal systems since the 1960s. Or perhaps it was the 1950s or the 1970s. The apparently peculiar (3) U.S, doctrine of precedent was created by the scandalous practices of private judging (4) that are the subject of this article: "unpublishing," "depublishing, and withdrawing judicial opinions.

"Unpublication" is what happens to the vast majority of opinions issued by U.S. state and federal courts. In the federal appellate courts, for example, the rate of unpublication presently hovers just under eighty percent. (5) Unpublication means that an opinion is not designated for publication in the jurisdiction's official reporter, if it has one; to a greater or lesser extent it makes the opinion difficult to find; it limits or destroys the precedential value of the opinion; and in most jurisdictions, citation to an unpublished opinion in documents filed in court or in argument is either banned or severely limited.

"Depublication" involves a jurisdiction's highest appellate court stripping an opinion of an intermediate appellate court of precedential value without an appeal to or hearing by the depublishing court, resulting in the opinion's removal from the jurisdiction's official reporter (if it has one), and its becoming more difficult to find than had it not been depublished.

"Stipulated withdrawal" of judicial opinions occurs when parties settle litigation while an appeal is pending; the opinion from which the appeal has been taken is vacated and thus stripped of precedential value; the withdrawal of the opinion is a condition of settlement. Sometimes it is also reversed by the appellate court at the request of the parties. Once again, stipulated withdrawal makes an opinion difficult to find.

I am uncertain when the earliest of these practices of private judging began, because some courts apparently privately decided to adopt some of the practices of private judging before they were mandated; my uncertainty is exacerbated because there are only partial records of the existing mandates.

The official record suggests that the oldest of them, contemporary or institutionalized "unpublication," began in the 1970s. (6) There is ample evidence that contemporary unpublication began, at least in the United States Court of Appeals for the Fourth Circuit, in the 1960s. (7) There is some scattered evidence that suggests that contemporary unpublication happened in practice as early as the 1950s. It is in fact clear that--at least in a significantly less systematized form--unpublication began earlier still; indeed, it has been a feature of the U.S. system of precedent since the inception of West's national reporter service. (8) Instead of following common law precedent as it is generally understood to operate, U.S. state and federal courts have adopted a group of rationalist procedures reminiscent of the codifying impulse that gave rise to the Restatements, which has moved U.S. judge-made law away from its English common law roots and much closer to a naive version of the civil law system.

These procedures, paradoxically (or perhaps necessarily) as haphazard as they are rationalist, give U.S. state and federal judges, and also, de facto, judicial clerks, staff attorneys employed by the courts, and (as in Colorado and New York) bureaucrats, power to declare judicial decisions of little or no precedential value and in some cases either to make them disappear from the public record or to abort them. As indicated supra, they also typically command the bar not to cite them to the courts that have issued them or at least limit citation in more or less significant ways. Because of the ways in which they complicate judicial "independence," such practices invite comparison with the civil law practice of having judges take an investigative or prosecutorial as well as a decisional role; (9) this is particularly marked because of the ways in which the practices of private judging in the U.S. courts have had the systematic effect of disadvantaging the powerless, the marginalized, and the "one-shotter," of whom the paradigm in this instance is the pro se prisoner litigator or the "foreigner" who is a criminal defendant or subject of immigration proceedings.

The courts of Australia, Canada, and New Zealand--all first-world western democracies with common law legal systems--have not (at least officially or yet) done anything like the U.S. courts have done. While only some of the opinions ("judgments") of the Australian, New Zealand, and Canadian courts are included in official or unofficial reporters, this does not affect their precedential status, either de jure or, since the development of the widespread practice of courts routinely putting judgments online, de facto. While a comparativist study of the material practices of dissemination of various kinds of decisions made by courts in these countries is beyond the scope of this Article, troublingly, given my conclusions here, the Australians are now considering adopting at least one of the U.S. practices of private judging in the so-called public courts: "unpublishing." In addition, I have uncovered some anecdotal evidence that suggests it is already silently being practiced in Canada; (10) and Britain recently followed the United States in 2001 by imposing a limitation on citation of judgments not included in the official reporters. (11) A significant difference between the British situation post-2001 and the United States is that courts do not control the decision whether a judgment will be included in the official reporters.

This Article involves a critical analysis of the three main practices (12) of private judging developed in the U.S. courts--contemporary unpublication, depublication, and stipulated withdrawal--and of the scholarly and judicial justifications and criticisms of them.

Part I documents the origins of contemporary institutionalized unpublication of opinions, stipulated withdrawal, and depublication, and describes the current state and volume of each practice. Its most significant contribution to the historical accounts of the development of contemporary institutionalized unpublication, both the dominant and originary practice of private judging in the U.S. courts, is its drawing on both "private" and obscure evidence, not uncovered by earlier critics of or apologists for unpublication, that the United States Court of Appeals for the Fourth Circuit developed contemporary institutionalized unpublication as a reaction against appeals from marginalized litigants--prisoners appealing their convictions pro se and civil rights appellants. This occurred at a time when U.S. law's constitutive history of excluding the nation's paradigmatic "others," African-Americans, was forced to give way in the wake of (1) Brown v. Board of Education (13) and (2) the deployment of equity jurisprudence developed jointly by a group of four judges on the United States Court of Appeals for the Fifth Circuit, the Kennedy Justice Department, and the activists and legal strategists of the civil rights movement. This evidence suggests that contemporary unpublication theory and practice was first conceived by the United States Court of Appeals for the Fourth Circuit between 1956 (14) and 1962, (15) with refinements made to institutionalized unpublication in the period from 1962 and 1968--precisely the period in which the "unlikely heroes" of the United States Court of Appeals for the Fifth Circuit (Judges Elbert P. Turtle, John Minor Wisdom, John R. Brown, and Richard Taylor Rives) and District Judges Frank M. Johnson, Jr., and J. Skelly Wright were developing the equity jurisprudence that would "flesh out Brown's mandate for equality and expand it beyond education ... issu[ing] ... landmark decisions that struck down barriers of discrimination in voting, jury selection, and employment." (16)

Part II describes how, for reasons which include but are not limited to the fact that they sacrifice principled decisionmaking, (17) the practices of private judging in the courts imperil the legitimacy of the judicial system and thus the rule of law. Further, it demonstrates that there is credible evidence of the tendency for the practices of private judging to corrupt the operation of the courts and the administration of justice, and that placed in contexts the justifications currently advanced for the practices are both impoverished and often based on misleadingly partial and inaccurate data. I go on to argue that just as contemporary institutionalized unpublication, the paradigm of the practices of private judging, replaced legalized racial discrimination as a structural means for U.S. "common law" to exclude "others" from its protection, to resist their calls for justice or equity under law, and thus to subordinate them, so the other practices of private judging operate in similar ways. And their effects are often cumulative. (18) Building on the insight that the practices of private judging have had the systematic effect of creating unequal opportunities for certain classes of litigants already on the margins of U.S. society, (19) and following readings of Derrida's account of the "scandal," (20)I conclude that this exclusion of the other has become constitutive of contemporary...