[NB: this post draws extensively on Brian Soucek’s Copy-Paste Precedent, which I thought was wonderful.]
When you think of a court resolving a legal dispute you typically think of a judge (or panel of judges) carefully reviewing the record and then crafting a custom opinion that is the judge’s or panel’s considered view of the merits of the case. The opinion will cite extensively to the facts of the specific case, draw heavily on legal opinions, engage the best arguments on either side of the issue, and, in the end, be published in an official compendium of judicial opinions (in the federal system, this is the Federal Reporter) so that future courts and litigants can rely on the opinion for guidance. The opinion will stand, authoritative within its sphere, fully binding other courts to follow it (or distinguish it, but at least to engage with it).
In the intermediate federal courts of appeals this is not how it actually works. Instead, the opinion described above is a published opinion, whereas the vast majority of cases decided in the circuit courts are resolved through unpublished summary orders. (For example: in 2010-11 the Second Circuit — which handles all federal appeals arising in New York, Connecticut and Vermont — 89% of all decisions were unpublished summary orders.)
The differences between published opinions and unpublished summary orders
Federal Rule of Appellate Procedure 32.1 requires federal appellate courts to allow litigants to cite both published opinions and unpublished summary orders. (Unpublished is something of a misnomer; unpublished summary orders are actually reproduced in a reporter called the “Federal Appendix;” published opinions can be found in the “Federal Reporter.”) Nonetheless, published opinions and unpublished summary orders differ in several respects:
(1) Substantively, published opinions are (as indicated above) bespoke; they are supposed to be carefully reasoned and attentive to nuanced factual and legal distinctions. Unpublished summary orders, by contrast, are typically boilerplate: one paragraph reciting the law that is often copy-pasted from a prior unpublished opinion, another applying the law to a conclusory statement of facts.
(2) Judges are typically heavily involved in the drafting process for crafting a published opinion. While their clerks may produce a memo, or even a first draft, judges will usually undertake extensive revisions, correspond with their clerks and other judges about the relevant issues, and request followup research as needed. Judges will also hear oral argument on issues resolved by published opinions. By contrast, unpublished summary orders are often drafted by career court staff attorneys (as opposed to the judges’ personal clerks), rubber-stamped by the judges, and resolved “on the briefs” without benefit of oral argument.
(3) Finally, unpublished summary orders have a different legal status from published opinions: published opinions are precedent; unpublished summary orders are not. This means that while courts are supposed to follow published opinions (absent a compelling reason to overrule them), they are free to ignore unpublished summary orders. Litigants can cite to summary orders, and judges can accord those orders “respectful consideration,” but there is a huge difference, both in theory and in practice (even though theory and practice may diverge), between according an opinion respectful consideration and treating it as precedent.
Normative dimensions of unpublished summary orders
Even confined to the realm of theory — to how unpublished summary orders are supposed to work — their use is controversial.
The objections to deciding cases using unpublished summary orders is obvious. The practice is arguably constitutionally suspect in that inherent in any exercise of the Judicial Power is the creation of an opinion with precedential weight. (The thought here is that decisions that do not bind future decision-makers are not judicial decisions but something else: ad hoc compromises, policy judgments, etc.) The practice is also arguably incongruent with our ideals of the wisdom of the common law (can “judges accurately determine which of their opinions are important enough to publish[?]”), judicial review (is “non-publication an attempt to shield opinions from review[?]”) and equality before the law (such “cases are, by judges’ own admission, given less care and attention than those whose cases are decided through published opinions”).
There are two considerations in favor of unpublished summary orders, both of which nod to the reality that the federal appeals courts’ dockets are so swamped with appeals as of right that the courts can no longer live up to the ideal of individualized, adversarial justice that we still putatively hold them to.* The first justification is that unpublished summary orders are a mechanism that allow the courts to reserve its scarce resources for hard cases that are best handled by judges applying traditional judicial ideals. The second justification is that unpublished summary orders actually advance rule of law values by ensuring that a welter of ill-considered precedent is not generated.
Unpublished Summary Orders in Practice
Soucek’s article examines how unpublished summary orders actually work in practice. He focuses on how the Second Circuit has dealt with the question, important in asylum law, of whether one has been persecuted because of one’s “membership in a particular social group.” Crucial to the resolution of this question is whether the asylum seeker is perceived,in his native country, as a member of a social group. This issue of group perception, Soucek notices, has received divergent treatment in the Second Circuit’s published opinions and its unpublished summary orders.
To simplify: the latest published opinion on the matter, Koudriachova v. Gonzales, 490 F.3d 255 (2d Cir. 2007), is clear that the characteristic need not be literally visible (such as skin color), but can be any characteristic that can be used to identify a social group (such as sexual orientation). Not so with the unpublished summary orders. Beginning with the 2008 case Romero v. Mukasey, 262 F. App’x 328 (2d Cir. 2008), the Second Circuit has issued a series of unpublished summary orders that, unlike Koudriachova, are interpretable as endorsing the “literal visibility” test for membership in a social group. The language from Romero has been copy-pasted (without being cited to Romero) into 1/3rd of the Second Circuit’s summary orders.
Given that the vast bulk of immigration appeals are resolved by unpublished summary order, the upshot is that the living law that immigration judges in the Second Circuit work with pushes them to apply a test that Second Circuit precedent rejects. What this means is that unpublished summary orders can function as precedent in certain localized areas of the law.
Conclusion and Unresolved Issues
Assuming unpublished summary orders are here to stay — and they are — Soucek’s article raises the question how they should be produced. Soucek reminds us why this question matters even though summary orders are not circuit precedent. When summary orders are systematically used in one area of law — e.g. immigration law — then the living precedent for immigration law judges is the body of summary order law. If, in one of these areas of law, summary orders diverge from circuit precedent — either in terms of their language (as in Soucek’s example) or in how that language is applied — then that area of law is, as a functional matter, governed by a set of novel precedents that were not created by judges living up to the norms we expect of them, and that are not subject to meaningful review (because they are not circuit precedent, the circuit can ignore them at will).
Particularly if widespread (and Soucek does not show that it is), this is a bad state of affairs. Possible remedies, hitherto undertheorized, range from declining to assign the same staff attorneys to the same areas of law over and over again (to prevent their idiosyncratic application of unpublished boilerplate from affecting the “legal mood” in that area), to developing some internal mechanism for tethering each kind of summary order to the precise set of cases that must apply, to allowing for special appeals of summary orders on narrow grounds concerning their facial deficiency vis-a-vis controlling circuit law.
* It is telling that summary orders are most often used in the immigration law and criminal law contexts. In both of these contexts the appeal-as-of-right is coupled with the availability of free counsel. Result: appeals-regardless-of-merit.