Soucek, Brian, Journal of Appellate Practice and Process
Precedential opinions are written to be cited, quoted, and followed. This essay identifies another kind of "precedent": unpublished opinions that are followed without being either cited or quoted. These decisions shape the course of the law not because they are binding--they explicitly are not--but simply because portions of their text get repeatedly copied and pasted into other unpublished opinions. "Copy-paste precedent" ends up having the influence of precedent without real precedent's authority---or scrutiny.
If a decision's influence is measured by the number of times it appears in case law, copy-paste precedent can sometimes have even more influence than a circuit's precedential opinions on the same subject. To show this, I focus here on an example from a burgeoning area of unpublished case law--immigration--in the Second Circuit, a court that last year decided a full ninety-seven percent of its immigration cases through unpublished summary orders. (1) My example concerns an issue that has lately attracted Congressional attention and led to a deepening circuit split: the visibility required of social groups under asylum law. (2) The example is notable not least because it is wrong.
On one level, this is to say that the copy-paste precedent discussed below is substantively mistaken. The text that keeps getting copied and pasted into ever more unpublished summary orders diverges in a significant way from the Second Circuit's official doctrine. This point is not unimportant, given the fact that another asylum application is affected each time the mistaken text gets copied and pasted.
Worse, correcting a mistake like this in copy-paste precedent is at once less and more difficult than correcting one that is published. Unpublished opinions are less difficult to correct because they are not binding; yet they are also less likely to be corrected, because no one thinks to do so. The errors of unpublished opinions, even when they are discovered, are not thought to self-replicate as precedential ones do. Why then correct something which, it is assumed, will not guide future opinions?
In a world of copy-paste precedent, this last assumption fails to hold. Unpublished opinions do guide the opinions that follow, but troublingly, not as deliberately, and not nearly as openly, as precedential opinions do. This is the more significant, procedural sense in which the copy-paste precedent discussed in this essay is mistaken: It makes law the wrong way.
The point of this essay is thus to correct a mistake in the Second Circuit's case law, but it is not merely that. The broader aim is to call attention to an unacknowledged and mistaken way in which law gets made--not just in the Second Circuit, but, potentially, throughout the eighty-five percent of cases that the federal courts of appeals now decide through unpublished opinions. (3)
II. UNPUBLISHED OPINIONS
Unpublished opinions, as judges and lawyers well know, are nothing of the kind. Not only are they published in the Federal Appendix, but they are fully searchable on commercial databases and available--as required by law (4)--on appellate courts' websites. Since the controversial Rule 32.1 of the Federal Rules of Appellate Procedure went into effect in December 2006, courts may no longer prevent litigants from citing unpublished opinions issued in 2007 and later. Thus, the only real difference between published and unpublished opinions is that unpublished opinions do not have precedential effect. A federal appellate court's unpublished opinions do not bind either that circuit's trial courts or its future appellate panels.
Unpublished opinions are a relatively recent feature of the federal courts. It wasn't until 1973 that the Advisory Council on Appellate Justice recommended that the circuits establish publication plans to limit the number of published opinions and to restrict parties' ability to cite to those not published. …