united-states publishing
What goes in to deciding whether a court opinion will be published or not?
<p>Generally, attorneys may not cite to, and courts may not rely upon unpublished opinions. (<em>See</em> for example Cal. Rules of Court <a href="https://www.courts.ca.gov/cms/rules/index.cfm?title=eight&amp;linkid=rule8_1115" rel="nofollow noreferrer">§8.1115</a>) Although I can't use them, I read many unpublished opinions because they often cite to useful published opinions that I <em>can</em> use. I've always wondered how it gets decided whether an opinion will be published or not. Obviously, all Supreme Court cases get published, but I'm talking about the intermediate appellate court opinions, which sometimes do or do not get published. In the back of my mind, I've always wondered if perhaps some opinions don't get published because the Court <em>really</em> wanted to reach a particular result but didn't want to create a precedent in the process. There's something a little unnerving about that, though, and I wonder if someone might be able to shed some light on the process behind deciding whether to certify or not certify an opinion for publication.</p>

<p>In Colorado, which is fairly typical, this is governed by Colorado Rule of Appellate Procedure 35(e) which states:</p>
<blockquote>
<p>(e) Published Opinions of Court of Appeals. A majority of all of the
judges of the court of appeals shall determine which opinions of that
court will be designated for official publication. They opinions shall
be published in the official publication designated by the supreme
court. Opinions designated for official publication must be followed
as precedent by all lower court judges in the state of Colorado.</p>
<p>No court of appeals opinion shall be designated for official
publication unless it satisfies one or more of the following
standards:</p>
<p>(1) the opinion establishes a new rule of law, or alters or modifies
an existing rule, or applies an established rule to a novel fact
situation;</p>
<p>(2) the opinion involves a legal issue of continuing public interest;</p>
<p>(3) the majority opinion, dissent, or special concurrence directs
attention to the shortcomings of existing common law or inadequacies
in statutes; or</p>
<p>(4) the opinion resolves an apparent conflict of authority.</p>
</blockquote>
<p>In federal practice, each appellate court circuit establishes criteria for publication of appellate opinions as well as criteria indicating whether unpublished decisions may be cited and what precedential value should be accorded them.  Generally, publication criteria are found in each circuit’s rules of court.  Approximately 35% of Court of Appeals decisions and 20% of U.S. District Court decisions are published.  Unpublished cases can sometimes be located on LexisNexis, Westlaw, West’s Federal Appendix or in topical loose-leaf services.</p>
<p>Local Rule 36 of the United States Court of Appeal for the 10th Circuit is typical. It states:</p>
<blockquote>
<p>10th Cir. R. 36</p>
<p>36.1 Orders and judgments.</p>
<p>The court does not write opinions in every case. The court may dispose
of an appeal or petition without written opinion. Disposition without
opinion does not mean that the case is unimportant. It means that the
case does not require application of new points of law that would make
the decision a valuable precedent.</p>
<p>36.2 Publication.</p>
<p>When the opinion of the district court, an administrative agency, or
the Tax Court has been published, this court ordinarily designates its
disposition for publication.</p>
</blockquote>
<p>Also in federal practice, citation to unpublished opinions is generally allowed pursuant to Federal Rule of Appellate Procedure 32.1 which states:</p>
<blockquote>
<p>Rule 32.1 Citing Judicial Dispositions</p>
<p>(a) Citation Permitted. A court may not prohibit or restrict the
citation of federal judicial opinions, orders, judgments, or other
written dispositions that have been:</p>
<p>(i) designated as “unpublished,” “not for publication,”
“non-precedential,” “not precedent,” or the like; and</p>
<p>(ii) issued on or after January 1, 2007.</p>
<p>(b) Copies Required. If a party cites a federal judicial opinion,
order, judgment, or other written disposition that is not available in
a publicly accessible electronic database, the party must file and
serve a copy of that opinion, order, judgment, or disposition with the
brief or other paper in which it is cited.</p>
</blockquote>
<p>The practice of not publishing all court decisions is <a href="https://law.yale.edu/mfia/case-disclosed/are-unpublished-opinions-inconsistent-right-access" rel="nofollow noreferrer">controversial</a>, although only mildly so in federal practice, after FAP 32.1 was adopted.</p>
