Parades ofRorribles, Circles of Rell: EthicalDimensions of the Publication Controversy

David S. Caudill*

[A]bandon every hope, you vvho enter.Dante Alighieri, Inferno (Canto 111:9)1

Introduction: Parades qf'Horribles

Rhetorical recourse to a "parade of horribles" need not have a pejorativeconnotation. In policy debates, for exaluple, opponents and proponents of anew rule or regulation typically rely on predictions of the adverse effects ofaccepting or rejecting, respectively, the proposal. SOlnetilues the benefits of aparticular course ofaction-whether to change or to keep a law-will outweighthe realistically identified burdens. Nevertheless, in the controversysurrounding proposed Federal Rule of Appellate Procedure 32.1 (Rule 32.1)2and publication practices generally, many suspect that the dueling parades ofhorribles are exaggerated. Indeed, as Professor Stephen Barnett points out, ifRule 32.1 would be as disastrous as its opponents clainl, then the Inajority offederal circuits would be rushing to prohibit citation of unpublished opinions intheir own rules. 3 Conversely, if prohibiting citation of unpublished opinions

* Alihur M. Goldberg Falnily Chair in Law, Villanova University School of Law.Professor Caudill, the chair of the law center symposiun1 in which an earlier version of thispaper was presented, was at that time Professor of Law and Alulnni Faculty Fellow atWashington and Lee University School of Law. He acknowledges the Summer (2005) ResearchGrant, to support cOl11pletion of this n1anuscript, froln Villanova University School of Law.

1. DANTE ALIGHIERI- INFERNO 55 (Canto III:9) (Robert M. Durling ed. & trans., OxfordUniv. Press 1996).

2. Rule 32.1, entitled "Citing Judicial Dispositions," is a proposed atnendlnent publishedfor COlnn1ent in August 2003 by the Advisory COlnn1ittee on Appellate Rules. If adopted, therule would allow citation to unpublished opinions in every federal circuit. COivIM. ON RULES OFPRACTICE & PROCEDURE OF THE JUDICIAL CONFERENCE OF THE lJ.S., PRELIMINARY DRAFT OFPROPOSED AMENDMENTS TO THE FEDERAL RULES OF ApPELLATE, BANKRUPTCY, CIVIL, ANDCRIMINAL PROCEDURE 31-32 (Aug. 2003).

3. See Stephen R. Barnett, The Dog That Did Not BarIc No-Citation Rules, JudicialConference Rulen1aking, and Federal Public Defenders, 62 WASH. & LEE L. REV. 1491, 1550­51 (2005) ("If ... predictions of adverse effects froln citability ... are accurate, we would

1653

1654 62 WASH. & LEE L. REV. 1653 (2005)

was as problelnatic as the proponents of Rule 32.1 claitn, then the four circuitsthat prohibit citation would elnbrace the salvation offered by Rule 32.1.Because both "systenls" of citation are currently in place, both sides in the Rule32.1 debate can claitn that the other side has no evidence to support itspredictive parade of horribles.

As to the broader but related issue ofwhether current publication practicesare praglnatically necessary or extrelnely troubling, both sides in that debatealso enlist parades of horribles (that are likewise susceptible to charges ofexaggeration).4 Significantly, supporters ofsuch practices as unpublication anddepublication predict a dire situation if it were otherwise, while critics seek todisclose the hidden parade of horribles that now exists. Finally, whendefenders ofno-citation rules and the practice ofwriting unpublished opinionsrespond, they unwittingly create a parade of horribles by virtue of theirjustificatory revelations. I have mentioned lots of parades here, so let Ineexplain.

The first parade of horribles, offered in support of Rule 32.1, includes(i) the hardships on attorneys who have to figure out the conflicting citationrules in each circuit; (ii) First Alnendlnent and prior restraint concerns ("no­citation rules ... are profoundly antithetical to Alnerican values"s); (iii) thedissonance between no-citation rules and the fact that unpublished opinions areavailable, insightful, used by attorneys, and cited by judges; (iv) arbitrarinessand injustice because sitnilar cases lnay not be treated alike; (v) lack ofjudicialaccountability and loss of public confidence in the judiciary; and (vi) theappearance-perhaps reality-that wealthy litigants get published opinionswhile the poor do not. 6 If this parade appears to you to be exaggerated, then­with apologies to cOlnedian Jeff Foxworthy-you Inay be an opponent of Rule32.1.7

expect to see some evidence of such effects in the circuits where unpublished opinions arecitable. ").

4. Regarding praglnatic necessities, see generally Boyce F. Martin, Jr., In Defense ofUnpublished Opinions, 60 OHIO ST. L.J. 177 (1999)~ regarding the extrelnely troubling aspectsof current publication practices, see generally Penelope Pether, Inequitable Injunctions: TheScandal ofPrivate Judging in the U.s. Courts, 56 STAN. L. REV. 1435 (2004).

5. Memorandum from Patrick J. Schiltz, Repol1er, Advisory COlnmittee on AppellateRules, to Advisory COlnnlittee on Appellate Rules 46 (March 18, 2004) [hereinafter Schi ltzMemorandum] (on file with the Washington and Lee Law Review).

6. See id. at 46-58 (discussing arguments for adopting Rule 32.1).7. For those readers unfanliliar with this Southern cultural reference, JeffFoxwolihy, star

of the current television show Blue Collar TV (Warner Bros.), becatne fatnous in the 1990s withhis "You Inight be a redneck ... " routine. See, e.g., JEFF FOXWORTHY, THE BEST OF JEFFFOXWORTHY: DOUBLE WIDE, SINGLE MINDED (Warner Bros. Records 2003) ("lfyou've ever cutyour grass and found a car, you might be a redneck. ").

PARADES OF HORRIBLES, CIRCLES OF HELL 1655

The second parade ofhorribles, offered by opponents ofRule 32.1, is evenbigger, reflecting both the benign fact that opposition to a controversialproposal is traditionally nlore likely than support8 and the unseenl1y fact that theopposition to Rule 32.1 was an organized calnpaign-repetitive, even identical,COlnlnents were sent to the COlnlnittee, and about ninety percent of the lnorethan five hundred conl1nents received were opposed to Rule 32.1.9 This paradeof horribles includes the following predictions: (i) judges will be nlisled byillegititnate citation of unpublished opinions; (ii) judges will be overwhehnedby the duty to write better unpublished opinions and consequently have lesstiIne to write published opinions, thereby rendering the (actual) law less clear,leading to lnore litigation and even greater denlands on judges' tilne, all ofwhich will result in lnore one-line dispositions; (iii) the body of case law willbe (solnewhat contradictorily, given the previous prediction) vastly increased,inlposing a hardship on attorneys; and (iv) parties will have to wait longer forjudicial resolution, which costs lnoney and discrinlinates against the poor. 10

In the broader debate over publication practices generally, the parades ofhorribles offered by defenders and critics overlap sOlnewhat with the two Rule32.1 parades. Defenders of the unpublication practice point to the crises thatled to current practices, including overwhehning precedent, technological andstorage problelns and inefficiencies, and increasing judicial workloads. Criticshighlight the sacrifice of principled decisionlnaking, the loss of judiciallegitinlacy, cOlnprolnises of transparency and accountability, an increasedinconsistency or lack ofunifonnity, the advantaging of repeat-players, and thecorresponding subordination of the poor and Inarginalized. 11

8. See Barnett, supra note 3, at 1502 n.52 ("It's quite typical in these rules ll1atters thatthe overwhelming letters, particularly on a controversial ll1atter, will be opposed. There'salll10st a tradition of that. " (quoting Judge David F. Levi, Transcript ofHearingBefore AdvisoryCOlTImittee on Appellate Rules 121 (April 13, 2004), http://www.nonpublication.colTI/aphearing. doc)).

9. See Schiltz MelTIOrandum, supra note 5, at 1-2 (describing the ways in which "[t]heCOlTIlTIents were highly unusual").

10. See id. at 34-46 (discussing argulnents against adopting Rule 32.1). For an argumentthat this parade of horribles is exaggerated, see Stephen R. Barnett, In Support of ProposedFederal Rule oj'Appellate Procedure 32.1: A Reply to Judge Alex f(ozinski, THE FED. LAW.,

Nov./Dec. 2004, at 32.11. See Matiin, supra note 4, at 180 (cataloging S0111e of the criticislTIs to which Judge

Martin responds: "loss of precedent ... sloppy decisions ... lack of unif01111 ity difficulty ofhigher court review ... unfairness to litigants [who] deserve published opinions less judicialaccountability ... less predictability"). See also Pethel', supra note 4, at 1439-41 stating that:

[T]hree main practices of private judging [have] developed in the U.S. Courts­contemporary unpublication, depublication, and stipulated withdrawal ....

1656 62 WASH. & LEE L. REV 1653 (2005)

A fifth and final parade of horribles arises froln these debates ahnost inreverse or by accident-I refer here to the response by Judge Kozinski tocriticisIn of the no-citation rule, a response which also defends the practice ofunpublication as a necessity.12 Judge I(ozinski's falnous January 16,2004letter to Judge Alito, Chainnan ofthe Advisory Comlnittee on Appellate Rules,was intended to cOInfort the offended by offering a reality-check, an insider'sview of why designating SOlne opinions as unpublished was not a horror to befeared. In the process of explaining, however, Judge I(ozinski horrified Inanyreaders. For exaInple, I(ozinski wrote that unpublished opinions are simply not"safe as precedent" given "the press of our cases"; that Inany such "cases arebadly briefed" and, "[q]uite often, there is a severe disparity in the quality oflawyering between the parties"; and that "unpublished dispositions-unlikeopinions-are often drafted entirely by law clerks and staff attorneys" 13-coldcOInfort to litigants and hardly reassurance that the status quo needs no seriousrefonn.

In similar testin10ny before the House, Judge Kozinski, according to onescholar, heretically argued that if unpublished

decisions were citable, ... the judges lTIight have "to pay much closerattention to their precise wording," [or] "agree on the precise reasoning,"the judges who dissent frOlTI the result lTIight have to make that fact known,and judges not on the panellTIight "have to pay lTIuch closer attention" tothe decisions written by their colleagues. 14

The author goes on to state that" [Kozinski's] rationalizations ... are not onlyoutrageous, but in Iny view, violate the fundalnental principles ofthe ... Codeof Judicial Conduct." 15 Indeed, the very notion that unpublished opinions are

[These practices] sacrifice principled decisionlnaking [and] ilnperil thelegitimacy of the judicial systelll and thus the rule of law [T]here is credibleevidence of the tendency for the practices of private judging to corrupt theoperation of the courts and the adillinistration of justice ....

Id.

12. See Letter frolll Judge Alex I(ozinski, U.S. Court of Appeals for the Ninth Circuit, toJudge Sailluel A. Alito, Jr., Chairnlan, Advisory Conlnlittee on Appellate Rules (Jan. 16,2004)[hereinafter Kozinski l..Jetter] (explaining Judge }(ozinski's opposition to Rule 32.1) (on illewith the Washington and Lee Law Review).

13. See id. at 4-6 (arguing that treating an unpublished disposition "as a citable precedent[is] a tillle bomb").

14. Lawrence J. Fox, Those Unpublished Opinions: An Appropriate Expedience or anAbdication ofResponsibility?, 32 HOFSTRA L. REV. 1215, 1222 (2004) (quoting UnpublishedJudicial Opinions: Hearing Before the Subcol1un. on Courts, the Internet, and IntellectualProp. of'the House ConuJ'l. on the Judiciary, I07th Congo 13 (2002) (statement of Judge AlexI(ozinski), available at http://judiciary.house.govltnediaJpdfs/printers/I 07th/80454. pdf).

IS, Id.

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written quickly by court staff or law clerks can be (if you put yourself in theposition of an anxious litigant on appeal) scandalous, depending on yourposition in the publication controversy and on which parades ofhorribles youthink are exaggerated.

The purpose ofthis Article is to explore SOlne ofthe ethical dilnensions ofthe publication controversy. As I will show, there are different types of ethicalchallenges or dileInInas for lawyers and judges in each ofthe several "levels" ofthe controversy. In tenns of Dante's If7;[erno, lawyers and judges arecondelnned to different fates depending on the "circle of Hell" in which theyfind thelnseives. Recall that in the structure of Dante's Hell, occupants ofdifferent levels suffer differently, with relatively little suffering in the firstcircle of Hell, but significantly Inore suffering in the lower circles; indeed, thesuffering increases at each level in proportion to the seriousness of the sin thatis being punished.

In Iny first circle of Hell, I identify ethical problenls created by no-citationrules. In the second circle of Hell, I identify ethical probielns that arise frolnthe current context of publication practices generally. The third circle of Hellrepresents what has been called the trend toward privatization of law, or "theend of law" as we know it, wherein a different set of ethical dinlensions can beidentified. It is Iny hope that this taxonoIny helps explain why the heatedcontroversy over Rule 32. I-which appears to SOlne to be a tenlpest in a teapotor "Much Ado About Little" 16-is so polarizing and itnportant. In short, theRule 32.1 debate signifies a Inuch deeper probieln.

The Rule Against Citation: The First Circle 0.[Hell

Anyone who states that lawyers andjudges have a conllnon understandingofhovv to handle unpublished decisions is either In isinfor111ed or less than. 17

candid.

Conlparatively speaking, the first circle of Hell in Dante's Inferno­LiInbo-is not that bad. For those virtuous unbelievers at this level who diedunbaptized or otherwise preceded Christ, there is no physical suffering, butthere is Inental anguish in the knowledge that one will never see Hhn. 18 Homer

16. Patrick J. Schihz, Much Ado About Little: Explaining the Stunn Und Drang Over theCitation of Unpublished Opinions, 62 WASH. & LEE L. REV. 1429 (2005).

17. Bennett Evan Cooper, Public COlnlnent 03-AP-432, Proposed Federal Rule ofAppellate Procedure 32.1 (Feb. 13,2004), quoted in Schiltz Melnorandum, supra note 5, at 94,available at http://www.secretjustice.org/pdt~files/Colnments/03-AP-025. pdf.

18. See ALIGHIERI, supra note 1, at 73 (Canto IV: 31-43). The following passage is

1658 62 WASH. & LEE L. REV 1653 (2005)

and Ovid, Socrates and Plato, Delnocritus and Euclid, alnong others, aresuspended in Linlbo, Inany of whoIn live in a "noble castle" surrounded "by alovely little streanl." 19

Likewis~, the ethical dilenllnas faced by attorneys because of no-citationrules are indirect and sOlnewhat speculative. For exalnple, the variation acrosscircuits as to citation of unpublished opinions "lneans that practitioners facesanctions if they cite unpublished cases in certain circuits, yet risk negligence ifthey fail to do so in others. ,,20 This risk exists throughout the law, and thereforeseelns Ininitnal. Indeed, Judge Kozinski relnarks that the "argument thatlawyers have difficulty figuring oufthe applicable rule doesn't pass the straight­face test. ,,21 A cOlnpetent attorney will follow the applicable rules. As if thataphorisln needed clarification, the ABA issued a fonnal ethics opinionconcerning the propriety of citing an unpublished opinion in a no-citationjurisdiction.22 The opinion concludes that such conduct violates Model Rule3.4(c), which prohibits "knowingly disobey[ing] an obligation under the rulesof a tribunal,,,23 and creative attelnpts to circll1nvent the prohibition-by callingthe couli's attention to a prior decision for whatever use the court tnight Inakeof it-were condelnned as wel1. 24

A Inore significant dilelnlna, perhaps, created by unpublished opinions isthe choice attorneys face as to what constitutes cOlnpetent research. Attorneyrules of professional conduct require cOlnpetence, diligence, good faith claitns,

illustrative:My good nlaster [Virgil] said to Ine: "You do not ask what spirits are these yousee? Now I wish you to know, before you walk further,that they did not sin; and if they have merits, it is not enough, because they did notreceive baptisln, which is the gateway to the faith that you believe.And if they lived before Christianity, they did not adore God as was needful: andof this kind am I myself.Because of such defects, not for any other wickedness, we are lost, and only so farharmed that without hope we live in desire."

ld.19. ld. at 75-77 (Canto IV:85-144); id. at 75 (Canto IV: 106--08) (IfWe caIne to the foot of

a noble castle, seven titnes encircled by high walls, defended all around by a lovely littlestream. If).

20. David S. Law, Strategic Judicial Lawlnaking: Ideology, Publication, and AsyluI11Law in the Ninth (~ircuit, 73 U. CIN. L. REV. 817,819 (2005).

21. Kozinski Letter, SLlpra note 12, at 18.22. See ABA ConlIn. on Ethics and Profl Responsibility, Fortnal Op. 94-386R (1995)

(discussing the citation of unpublished opinions in courts that prohibit such citation).23. ld. (quoting MODEL RULES OF PROF'L CONDUCT R. 3.4(c) (1983)).24. ld.

PARADES OF HORRIBLES, CIRCLES OF HELL 1659

and candor toward the tribunal. 25 If noncitable opinions are not precedential,but nevertheless represent prior decisions of a court, how are they to be used?For exaInple:

Consider a lawyer counseling a client concerning a proposed course ofaction. If the only legal authority on point is a noncitable case that permitsthe conduct, what advice can the lawyer properly give? Or what if thenoncitable opinion forbids the conduct? Can the lawyer tell the client thathe or she is safe to proceed because an adversary could not cite a case thathas prohibited it? What if, during litigation, a lawyer asserts that an oldprecedent has never been followed? If the case has in fact been followedInany times, albeit in uncitable opinions [that] merely "restate" the law, ishis or her adversary expected to relnain Inute and thereby deprive the courtof infonnation helpful in evaluating ... the case? These scenarios presentawkward ethical problems.26

In another formulation of this dilenlnla, the president of the Los AngelesCounty Bar Association recently remarked:

One thing we don't know is what happens to the lawyer who missesnonpublished cases. Some disappointed client might sue forInalpractice .... It's not that people don't look at unpublished opinionsnow; they do. The difference is the priority you have to give them. 27

Significantly, the problenls of legal research-deciding what to read, howInuch weight to give to unpublished opinions, and what to use-persistregardless of no-citation rules. Both sides in the Rule 32.1 debate take theInoral high ground and parade out the hardships their opponent's positioncreates for attorneys. Rule 32.1 supposedly increases the burdens of researchbecause if unpublished "opinions were published and citable, lawyers wouldhave to search theln to confinn that nothing useful was in theIn, therebyincreasing the cost of legal research. ,,28 Silnilarly, no-citation rules supposedlydeprive attorneys of potentially useful insights and infonnation frolnunpublished opinions-advocates are handicapped by not being able to cite acase with facts silnilar to their own. 29

25. MODEL RULES OF PROF'L CONDUCT R. 1.1, 1.3,3.1,3.3 (2004).

26. David Greenwald & Frederick A.a. Schwarz, Jr The Censorial Judiciary, 35 U.C.DAVIS L. REv. 1133, 1157 (2002) (citations olTIitted).

27. Stephanie Francis Ward, Giving Their Opinions: Conunittee Backs Rule AllowingLawyers to Cite Unpublished Decisions, A.B.A. 1. E-REP. (ABA Jou111al, Chicago, Ill.), Apr. 23,2004 (on file with the Washington and Lee Law Review).

28. J. Clark K.elso, A Report on the California Appellate Syste111, 45 HASTINGS L.J. 433,492 (1994).

29. See Schiltz MelTIorandum, supra note 5, at 47-48 (noting that unpublished opinionsare often valuable resources).

1660 62 WASH. & LEE L. REV 1653 (2005)

Giving the benefit of the doubt to the proponents ofsuch argulnents, thesehardships tend to cancel each other out-hardships will occur using eithersysteln of citation. Of course, the proponents of Rule 32.1 view the critics'argun1ent with suspicion-attorneys already research unpublished opinions "soas to be able to advise clients about the legality of their conduct, predict theoutcolne of litigation, and get ideas about how to fralne and argue issues beforethe court. ,,30 Conversely, opponents ofRule 32.1 claim that allowing citation toan unpublished opinion that was likely written by a staff attorney, as if theopinion represents the view of the court, "is a particularly subtle and insidiousfonn of fraud.,,31 Rule 32.1 also facilitates fraud by creating "a veritablean1uselnent park for lawyers fond of playing gaInes," who can use SOlne of the"zillion" unpublished opinions that "tend to be thin on the facts, and written inloose, sloppy language. ,,32 Attorneys have lean1ed to deal with whatever systelnin which they work, and they do not seeln to be forced into acting unethically­incoITIpetently, dishonestly, or undiligently-in either systeITI.

A ITIOre serious set ofproblelTIs is associated with the question of what todo with unpublished opinions-what to read, use, and value. These ethicaldilen1Inas are a product of nonpublication practices generally in everyjurisdiction. Professor Fox, for exalnple, argues that "any interference with ITIyability to be as zealous and effective an advocate as I can be," such as no­citation rules, is frustrating: 33

Here I am providing the court with all the reasons why my client shouldprevail, [bringing] anything to the attention of the court that I think mightbe persuasive....

But the one thing I cannot cite is an unpublished opinion written by realjudges who sat on the very court before whom I appear in a case thatinvolved real litigants in a real dispute that was actually decided using theEnglish language as a way of informing the litigants how the court reachedits decision. 34

The problen1, of course, is that because of current publication practices theunpublished opinion Inay not have been written by real judges and it lnay not

30. Id. at 58.31. IZozinski Letter, supra note 12, at 7.

32. Id. at 21.33. Fox, supra note 14, at 1218.

34. Id. at 1217-18; cf MODEL RULES OF PROF'L CONDUCT R. 1.3 (2004) (itA lawyer shallact with reasonable diligence ... in representing a client.").

PARADES OF HORRIBLES, CIRCLES OF HELL 1661

reflect how the real judges reached a decision. And those practices, discussedin the next section, are really what Fox is "rail[ing] against. ,,35

Publication Practices: The Second C"lircle ofHell

And I caIne to a place where no light shines.Dante Alighieri, Inferno (Canto IV: 151 )36

In the second circle of Hell, Dante first confronts those who are punishedfor their sins, and the scene is grim: "lnuch weeping assails" hiln, "all light issilent," and the "infernal whirlwind, which never rests, drives the spirits beforeits violence; turning and striking, it tortures theln. ,,37 Dante is here supposed tolearn "to despise the lustful because they blaspheIneDivine Justice which hasplaced theln here,,,38 but he fails the test and syInpathizes with theIn,39eventually fainting, overCOlne with pity.40 Moreover, Dante alludes to a certainsolidarity or cOlnpanionship as the sinners in the second circle of Hell weatheran infernal stonn-while one spirit speaks, the other weeps.41 They do notsuffer alone.

The sense that "we are all in the sanle boat" also characterizes the historyof publication practices, which transcends the Rule 32.1 debate by inlplicatingall judges and lawyers. A dilelnlna for lawyers arises because they have toguess about the potential authority and value of unpublished opinions-theopinions lnight reflect the court's opinion, but they nlight not. As ProfessorFox has noted:

If in fact judges reach the saIne result, but for different reasons, are not thelitigants-if not the entire world--absolutely entitled to know that fact?Elnbedded in that undisclosed difference is a real opportunity for the partywho loses the appeal to seek further review. The failure to agree on the

35. See Fox, supra note 14, at 1218 (criticizing Rule 32.1 as an "interference" with hisability to be a "zealous and effective advocate").

36. ALIGHIERI, supra note 1, at 79 (Canto IV: 151).37. See id. at 87,89 (CantoV:26-27, 28, 31-33) (describing the second circle of Hell).38. DANTE'S INFERNO: THE INDIANA CRITICAL EDITION 52 (Mark Musa ed. & trans.,

1995).39. See ALIGHIERI, supra note 1, at 93 (Canto V: 116-17) C'Francesca, your sufferings

111ake tne sad and piteous to tears. ").40. See id. (Canto V: 140) ("[F]or pity I fainted as if I were dying. ").41. Id. (Canto V:139).

1662 62 WASH. & LEE L. REV 1653 (2005)

principle that supports the result-if it were disclosed ... could demonstratehow tenuous the result really is ....42

How is it possible to be conlpetent in the system in which we learned to predictthe outcolnes of controversies, if the cases Inost like ours have an unusuallyindeterlninate status? On the other hand, this is just an ethical strain becausewe are all in the saIne boat. The cOlnpetence and diligence required by therules of professional conduct are interpreted according to the conventions andpractices ofnlost lawyers, so it would be difficult to identify a violation on thebasis of a "guess" about the status of an unpublished opinion.

A different set of ethical dilenllnas arises for the judiciary in the era ofunpublished opinions. As Professor Fox has noted:

First, the Code [of Judicial Conduct] tells judges that they shall perfonntheir duties "diligently...." [A] lawyer who failed to perfonn assiduouslybecause he was too busy would have that excuse fall on deaf ears ....[D]oesn't [that] Inean that judges should not facilitate underfunding of thejudiciary by delivering second class justice[?]

Second, judges are to be "faithful to the law.... " [J]udges have nogreater calling than to decide cases fairly, itnpartially, consistently, andwith a full explanation to the parties of the basis for the decision....

Third, judges are adlnonished to maintain "professionalcOlnpetence...." [Doesn't] a judge who fails to write opinions withsufficient clarity of language and adequate consideration of the opinion'sprecedential value violat[e] the obligation of competence?43

These argulnents, lnade by Professor Fox in the context of his criticisln of no­citation rules, apply equally to the broader practice of unpublication. Ofcourse, the practice of issuing unpublished opinions is ajudicial convention-asystelnatic problenl not likely to lead to sanctions. Nevertheless, judges arearguably forced, by an overwhehning workload, to cOlnprolnise the ideals setforth in the Code of Judicial Conduct. But, an even broader problenl exists,with ethical itnplications for the profession. The practice of issuing

42. Fox, supra note 14, at 1223.43. ld. at 1225-26 (citing MODEL CODE OF JUDICIAL CONDUCT Canon 3 (1990), which is

titled "A Judge Shall Perfonu the Duties of Judicial Office ... Diligently," and Canon 3(B)(2),which states that "Ajudge shall be faithful to the law and tuaintain professional competence init").

PARADES OF HORRlBLES, CIRCLES OF HELL 1663

unpublished opinions is syInptomatic of the end, or privatization, of law inSOlne fields of practice.

Privatization: The Third Circle ofHell

Gluttony . .. has none ofthe potential char111 of'lust. [In the third circle,it} is punished by eternal groveling in ,nire andfilth. Whereas lust has thepossibility ofc0111panionship, here each is alone in his degradation, coldand 111iserable. 44

With respect to the end of law, we are not all in the saIne boat. There is norule or nationwide practice of privatizing law, but it happens in SOlne fields oflaw-so it lacks the chann of universality. For exan1ple, Professor Carr andattorney Michael Jencks highlight the privatization of dispute resolution in thefield of business law. 45 Though the COInInon law of reported decisionstraditionally developed "rules for allocating risk and deciding business andcOInInercial disputes,,,46 that systeln has been weakened by alternative disputeresolution (and judicial support of such privatization), "Inanagerial judging,,,47"the bureaucratization of the judiciary,,,48 and "the increased use of vacatur,selective publication and the adoption ofno-citation rules, depublication, filingsunder seal and confidential settlements. ,,49

As to the ethical dilnensions of privatization, Diane I(arpInan warns thatCalifornia's Mandatory Fee Arbitration Act and the California Arbitration Actcould together create "a future without reported decisions involving legalInalpractice" :

If every Califoll1ia lawyer included a binding arbitration clause for clientclaiIns, public decisionallaw regarding legal malpractice would disappear.

44. SETH ZIMMERMAN, Canto VI, in SUMMARIES AND DIAGRAMS, at http://holne.earthlink.netl-zilnls/sutnmaries.html#6 (last visited Sept. 5, 2005) (sumtnarizing Zimmernlan'stranslation of DANTE ALIGHIERI, INFERNO (Canto VI) (n.d.» (on file with the Washington andLee Law Review).

45, See Chris A. Carr & Michael R. Jencks, The Privatization of Business andCOl1llnercial Dispute Resolution: A Misguided Policy Decision, 88 K.Y. LJ. 183, 198-209(2000) (discussing this trend).

46. ld. at 185.47. ld. at 189.48. ld.

49. ld.

1664 62 WASH. & LEE L. REV. 1653 (2005)

... Once the [fee arbitration] "experience" is over, the client is back inbinding arbitration of the remaining claiIns. Nothing involving attonleylnalpractice need see the light of day.50

SOlne "SInart practitioners," therefore, Inay avoid the publicity of "publiclylitigated claitns of negligence. ,,51

Professor Judith Resnik suggests that alongside the twentieth-centurytrend toward increased "access to and reliance on adjudicatory" sites, "newdoctrines and nonns ... support several kinds of' alternatives,' many ofwhichlack adjudication's transparency. The result is dilninished reliance on andsupport for public processes. ,,52 She has noted:

With "vanishing trials" COlnes fewer adjudicatory mOlnents for the public towitness.... [C]ourt-based [alternative dispute resolution] processes ofteninvolve decisions by state-elnpowered actors who influence outcomesthrough infonnal discussions with lawyers and litigants that are aimed at"nudging" theln to settlelnent. SOlne of those settlements are "sealed," andsometimes those agreelnents also put Inaterials produced through discoveryunder wraps....

. .. [The concurrent, conflicting trend toward increased access toadjudicatory sites] Inay also render adjudication obsolete, as its specificitybecomes uncolnfortable when it produces visible disparities acrosssitnilarly situated individuals. 53

One can itnagine numerous areas of law where the anonylnity ofalternative dispute resolution would be appreciated by those accused andtroubling to those wronged-civil rights, conSUlner protection, en1ploylnentdiscrilnination, and so forth. For the purposes of this Article, attorneylnalpractice and ciailns of ethical violations are paradign1s ofthese phenon1ena.Private adjudication or settlement ofsuch disputes hinders the developlnent ofnonns and guidelines (through precedent) and thereby increases the risk ofinconsistent outcolnes and differential treatInent of like parties. The lawgoverning lawyers is thereby impoverished-an ethical "burden" of sorts. Butthis is only part of the larger probleln of the ethical burden itnposed on lawyers

50. Diane K.arplnan, Take a Close Look at Binding Arbitration, CAL. BJ., June 2004, at16.

51. fd.52. Judith Resnik, Procedure's Projects, 23 CIY. JUST. Q. 273,273 (2004).

53. fd. at 302-03 (citations olnitted).

PARADES OF HORRIBLES, CIRCLES OF HELL 1665

who inherit an itnpoverished body of precedent in any area of law: they cannotpredict outcolnes and advise clients with confidence.

Professors Perschbacher and Bassett call this privatization trend the "end oflaw,,,s4-the unintended result ofsettlelnent processes and their encouragelnent,S5arbitration and privatejudging,56 deferential standards of review,57 the "hannlesserror" doctrine,58 Ininitnalist judicial "standards" rather than "rules,,,59unpublished opinions and Inemoranduln dispositions,60 fewer oral argulnents,61the U.S. Suprelne Court'savoidance devices,62 vacatur,63 depublication,64 andstipulated reversa1. 65 Though the "vanishing trial" is an obvious phenomenon,less obvious is that,

[l]aw in the nonnative sense is vanishing-veiled by procedures that hide lawfroln view and eradicated by procedures that elilninate existing law. Theresult ofthese procedures is privatized law, distorted nonns, diminished caseresolution and explanation, and loss of the full landscape of law.66

SOlne people are astonished by these developlnents. But sOlne cOlnlnentators areastonished that anyone would be astonished-of course the trial is disappearing,and the only surprise is that anyone falniliar with law would be surprised.67

54. See generally Rex R. Perschbacher & Debra Lyn Bassett, The End ofLaw, 84 B.U.L. REv. 1 (2004).

55. Id. at 16-27.56. Id. at 28--32.57. Id. at 36-38.58. Id. at 38-40.59. Id. at 40-42.60. Id. at 42-46.61. Id. at 47-48.62. See id. at 48-54 (discussing certiorari, standing, tnootness, ripeness, and litnitations

on habeas review).63. Id. at 54-56.64. Id. at 56-59.65. Id.66. Id. at 62.67. See Resnik, supra note 52, at 283 (giving reasons the adversary systetn is disappearing).

Critics of adversarial adjudication,argue that adversary trials require extravagant investtnents of resources to yieldflawed conclusions. At the tnacro-Ievel, the cotnplaint is that "excessive adversariallegalism" is a drain on economic productivity.

Others dislike adjudication's fonnalistn that, they argue, promotes unnecessarilyprolonged conflicts. They propose more user-friendly, less adversarial processes....Such cOn1tnentators believe that processes such as tnediation and arbitration are tnorejustice-generative than is adjudication.

Id.

1666 62 WASH. & LEE L. REV. 1653 (2005)

Conclusion: Discourses ofAstonishnrzent

1 agree with those opponents ofRule 32.1 who ask, in essence: "What's thebig deal? What's the problen1 crying out for a solution? Are no-citationrules really inflicting a lot ofhar111 on a lot ofpeople? ,,68

Although I clerked for a federal court ofappeals judge, practiced law in twodifferent states, and currently teach in a law school, I was astonished to learn howInany judicial opinions are designated "not for publication." Yet the controversyover unpublished opinions is characterized by a discourse ofastonishment. Mostjudges seem to be astonished that I would be so naive. When those in thejudiciary explain their workload and situation, as Judge Kozinski did, critics areastonished by their cahn adnlission that unpublished opinions are "written inloose, sloppy language" by law clerks.69 Judges are, in tum, "baffled by"concerns about a body of secret law, use of unpublished opinions to circulnventthe law, or special treatnlent for SOlne parties.7o With respect to Rule 32.1,Patrick Schiltz seelns astonished that the controversy is so intense,71 and StevenBanlett is astonished that Schiltz recognizes the virtues of Rule 32.1 butrecoInInends no action at this tilne. 72 Everyone is shocked.

Contrary to those who think that the publication controversy is not worth allthe tinle and effort spent debating current judicial practices, this is a big deal.Ethically, it implicates the ability of lawyers and judges to do their jobscompetently. Though SOlne lawyers Inay not consider no-citation rules a hugeprobleIn, and though they may sitnply learn to live with the conventions ofnonpublication and privatization, the Rule 32.1 controversy represents and revealsthe problenlatic aspect of all of these phenolnena-we do not have a principledand transparent systeln ofjustice whereinjudges are responsible for creating rulesand are accountable for inconsistencies. Ifthat sounds exaggerated, you Inight bean apologist for the status quo.

68. Schiltz Memorandlun, supra note 5, at 90.69. K.ozinski Letter, supra note 12, at 4, 21.70. ld. at 7.71. See Schiltz Memoranduln, supra note 5, at 89-90 ("For the Inost part, the advisory

c01l1mittees identify technical problelns and propose uncontroversial solutions.... As a result,objections to proposed rules are usually neither Inany nor passionate.... Rule 32.1 is ... one ofthose rare proposals that is highly controversial. ").

72. See id. at 95 (stating that Professor Barnett "does not share the COlnn1ittee's concernthat judges who oppose Rule 32.1 will try to undennine it by ilnposing restrictions on thecitation of unpublished opinions").