Academic journal article Washington and Lee Law Review

Publishing Dissent

Academic journal article Washington and Lee Law Review

Publishing Dissent

Article excerpt

Were I to speak to the topic of this conference, on unpublished and depublished opinions, I would undoubtedly say that the proliferation in American courts of the mass destruction of opinions is so horrible for so many reasons that it is hard to keep track. I can capture why it is in one thought: Unpublication and depublication are threats to the integrity of common law. If common law is just the record of what courts have done and why they have done it, suppressing a portion of that record creates a divergence between the law in the books and the law on the ground. Common law at its most rigorous holds that any adjudication may from the perspective of some future adjudication be understood to have made law, however insignificant. Unpublication breaks the link that common law establishes between lawmaking and adjudication. Where rules against the citation of unpublished opinions are in effect, Unpublication permits judges (or whoever makes the publication decision) to pick and choose which cases will be available to serve as precedent and which will not. It thus allows judges to make decisions that are exempt from common law's fundamental discipline, that a judge must be prepared to see whatever decision he makes serve as precedent for a future decision. Depublication, for its part, conceals judicial behavior from public scrutiny. It erases from the public record an important jurisprudential phenomenon: judicial regret. It is that rarest of events: the cover-up of a virtuous deed. For what judges are hiding when they depublish an opinion is that, having set their minds on a certain course, they were willing to engage in further deliberation and prepared to say they were wrong.

Together, Unpublication and depublication insult democracy by endorsing what is, in effect, secret judicial action. On a professional level, they tempt the judiciary towards sloppy decision making. By avoiding public scrutiny of judicial behavior, they open the door to abuses of power-to corruption, favoritism, and an unbridled judicial prerogative.1 By embracing Unpublication and depublication, American judges are recalling the Tudors' Court of the Star Chamber, but without the Tudors' charm. And Star Chamber, in turn, was an instrument in the Tudors' effort to emulate the absolutism of the French monarchy, specifically its Conseil d'État. I do not reference absolutism entirely as hyperbole, or merely in jest. For the infelicities of unpublication and depublication may be avoided only by the exercise of rigorous bureaucratic control over and within the judiciary. That, in turn, requires a strong state-one not hobbled by the recognition of rights against the state or by a robust separation of powers.2

But I shall not speak to the topic of this conference, not because I am loath to criticize the American judiciary-just ask my students-but because I wish to condemn instead a very different sort of unpublication committed by appellate panels in legal systems based on civil law: their practice of not publishing separate opinions, either dissents or concurrences.3 Appellate panels in common law jurisdictions obviously do publish them; they do leave a record of disagreement amongst the judges. Because disagreement just as surely marks discussion in civilian panels, failing to publish separate opinions has the effect of masking it against public inspection or awareness. I argue that this suppression has numerous political and jurisprudential consequences, which I, for one, consider deleterious. My condemnation will proceed, for the most part, indirectly, by praising common law jurisdictions for publishing separate opinions and tracing that practice's desirable consequences. Mine is thus, in a way, the obverse of the topic of this conference: Instead of condemning American courts for not publishing majority opinions, I shall instead be praising them for publishing minority opinions.

But I must be more precise. The American practice of publishing separate opinions differs not only from civilian practice but also from the practice of the common law jurisdiction from which all others issue. …

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