It has been the practice of WESTLAW and LEXIS, as well as some internet sites, to include in their databases many of the decisions that the appellate courts have designated as "unpublished opinions." West Group has now begun to publish in print format some Federal Court of Appeals opinions with this designation in a new set entitled FEDERAL APPENDIX. (First Floor, shelf 114). These cases are indexed in West's Digest System as any regular "reported" (or published) case would be. While some researchers may welcome this edition to the available print reporter sets, practicing lawyers are faced with a dilemma - they are generally restricted from citing unpublished opinions, including those that could serve as important precedent for their case.

Federal appellate courts began limiting publication of opinions in 1973 for fear that a "crisis of volume" would "crush [the common law of the United States] by its own weight if the rate of publication [was] not abated." [Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Reform 119, 122 (1994)]. The appellate courts began to see that its judges could not keep up with writing published opinions for each and every case. Certainly, the courts wanted to ensure that decisions given precedential value reflected a quality of clarity and legal reasoning that would stand the test of future analysis. At the same time, the various appellate courts understood that published opinions, given the number of judges and the volume of work, were not feasible for all decisions. A 1973 report from the Advisory Council for Appellate Justice made a proposal that opinions be published only for the following reasons:

(1) it "lays down a new rule of law, or alters or modifies an existing rule"
(2) it "involves a legal issue of continuing public interest," in contrast to a "general public interest ... of a fleeting nature"
(3) it "criticizes existing law" or
(4) it resolves a conflict of authority and "rationaliz[es] apparent divergencies in the way an existing rule has been applied."[Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Reform 119, 124 (1994)].

The Eleventh Circuit Federal Court of Appeals states the following policy in I.O.P.- 5 of 11^th Cir. R. 36-3:

... The unlimited proliferation of published opinions is undesirable because it tends to impair the development of the cohesive body of law. To meet this serious problem it is declared to be the basic policy of this court to exercise imaginative and innovative resourcefulness in fashioning new methods to increase judicial efficiency and reduce the volume of published opinions .... A majority of the panel determine whether an opinion should be published. Opinions that the panel believes to have no precedential value are not published .... Although unpublished opinions may be cited as persuasive authority, they are not considered binding precedent. Reliance on unpublished opinions is not favored by the court ....

While the Eleventh Circuit does allow unpublished opinions to be cited, nearly half of the circuits (six of thirteen) do not allow citation "except to support a claim of res judicata, collateral estoppel or law of the case" [Jon A. Strongman, Comment, Unpublished Opinions, Precedent, and the Fifth Amendment: Why Denying Unpublished Opinions Precedential Value in Unconstitutional, 50 U. Kan. L. Rev. 195, 199 (2001)].

There has been significant criticism in the legal community of the practice of allowing opinions not to be published, or alternatively, of not allowing unpublished opinions to be recognized as precedent. Perhaps the biggest bombshell was dropped by a federal appeals court. In a decision by the Eighth Circuit of the U.S. Court of Appeals, the court in Anastasoff v. United States, 223 F.3d 898 (8^th Cir. 2000), held unconstitutional its own rule against recognizing unpublished opinions as precedent. While it did not criticize the practice of releasing unpublished opinions, it declared that all judicial opinions, published or unpublished, are precedent. This court, in Anastasoff v. United States, 235 F.3d 1054 (8^th Cir. 2000), later declared the case moot and vacated the prior opinion. The court stated: "The constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this Circuit."

One criticism is that many cases labeled "easy" (because their outcome is clear due to prior precedent) are not easy at all; numerous unpublished opinions include long dissenting opinions. [Danny J. Boggs & Brian P. Brooks, Unpublished Opinions & the Nature of Precedent, 4 Green Bag 2d 17, 20 (2000)]. One recent article surveying unpublished opinions stated the following:

... we found that the unpublished opinions we studied included a surprising number of reversals, dissents, and concurrences. Even more important, we discovered that outcomes among unpublished opinions showed significant associations with political party affiliation, specific professional experiences, and other characteristics of judges adjudicating the cases. Together, these findings suggest that panels authoring unpublished opinions reach some results with which other reasonable judges would disagree. Such divergent views are likely to reflect both differences as to the meaning of legal principles and disagreement over the proper application of seemingly settled law. Under those circumstances failing to give unpublished opinions precedential effect raises the very specter described by the Eighth Circuit [in Anastasoff]: that like cases will be decided in unlike ways, that judges' decisions will be "relegated only by their own [personal ] opinions ... ." [Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States, 54 Vand. L. Rev. 71, 119 (2001)].

Fairness is lost in such instances, according to another writer, who states, "... when a court refuses to grant an unpublished opinion precedential value, it denies an individual the opportunity to rely on the history, the reason, or the course that a binding decision has set forth .... If unpublished opinions are not precedent, ... the court can arbitrarily ignore or even directly contradict its previous decision for any reason or no reason at all." [Jon A. Strongman, Comment, Unpublished Opinions, Precedent, and the Fifth Amendment: Why Denying Unpublished Opinions Precedential Value is Unconstitutional, 50 U. Kan. L. Rev. 195, 212 (2001)].

Critics also charge that judges cannot reasonably predict precedential value of a decision; what may seem nonprecedential now may be seen in a different light to litigants in the future.

In what direction is this issue headed? One can only speculate; while unpublished opinions appear to be well established in the court system, their value as precedent is currently a matter of serious debate within academia and the courts. FEDERAL APPENDIX may become a valuable source of case law in the future; however, its current use is quite limited and researchers must be cognizant of applicable court rules in their jurisdictions when using this publication.

NORTH CAROLINA GENERAL PRACTICE HANDBOOK, 2001. KFN7481/.N7/2001.

A special welcome to both!

Besides books, many periodicals cover trial tactics and techniques. Notably, Cumberland's own American Journal of Trial Advocacy is devoted to scholarly analysis of litigation practices. Use LegalTrac, print indexes, Lexis, or Westlaw to find journal articles on point. Moreover, Cumberland students can learn trial skills in a simulated setting with the Interactive Courtroom. These multimedia training programs are available on CD-ROM or laser disk. The Law Library also collects videos demonstrating effective trial skills. For a description of selected videos, and an updated alphabetical list of other tapes, visit the Law Library's web site at  http://lawlib.samford.edu/media/ video.html. To view videos or CDs, ask at the Circulation Desk.

Paula Tillery, Law Library Assistant, Acquisitions and Tracey Harwell, Law Library Assistant, Reader Services each received awards at the Samford University Service Awards Luncheon on January 29, 2002. Both Paula and Tracey received awards for fifteen years of service at Samford. Congratulations to both!

If you are printing a PDF from a web page, you can print your document much faster by clicking on file, selecting print, and then checking the box that says "print as image" (wait to do this until the computer has completely loaded the document, though). This should help keep bulky documents from spooling through the system and wasting your time.

For up-to-date information call SAM-INFO (726-4636).

Since it's the beginning of a new semester, a Pcounter reminder is necessary. Pcounter is software that tracks printing in the labs. Law students are allotted 500 printed pages per semester. Student accounts are not charged for printing to Westlaw and Lexis dedicated printers. Only print jobs sent to the networked laser printers in the labs are deducted from the 500 pages. There are a few exceptions, which are described below.

Once a student has signed into a Law Library lab computer, a small black dollar sign should appear in the lower right corner of the computer screen. Clicking on this icon will show the balance that remains in the account. Students may print more than 500 pages, but their accounts will be charged ten cents per page beyond that allotment.

Exceptions are résumés, writing samples, and envelopes on their own paper, directed research, and poor-quality print jobs. If an account should not be charged, please fill out an Exemption Form located in the Lower Level Lab or request one at the Circulation Desk. If the charge should be waived due to poor quality, please include a sample of the printout with the form. User error may also be an exception if the Computer Services Librarian is notified and the student takes part in Pcounter instruction.

If you need help understanding Pcounter, contact Grace Simms, Computer Services Librarian, at glsimms@samford.edu or 726-2714.

These items are just a few of the many form books in the Law Library's collection. Ask a reference librarian for help if needed.