District Court Opinions That Remain Hidden Despite a Long-standing Congressional Mandate of Transparency-The Result of Judicial Autonomy and Systemic Indifference

摘要

1 In the course of a year, nearly 300,000 civil actions and more than 75,000 criminal proceedings are begun in the U.S. district courts, the federal judicial system's general-purpose courts of first instance. In resolving those matters, district judges and magistrate judges write and file many thousands of opinions. They range from rulings on preliminary motions to final judgments.2 Throughout the era in which lawyers, judges, and others seeking relevant case law searched in and read from print law reports, the federal government assumed no direct responsibility for the selection, collection, or publication of these decisions. Those tasks were performed in the private sector, most comprehensively by a publisher that worked so closely with the courts and their judges that many thought of its books as "official." In a functional, although not a legal, sense they were.3 During that period, publication was highly selective. The volume of decisions and economics of publication made that a necessity. Moreover, unlike the decisions of the U.S. Supreme Court and courts of appeals, none of these constituted precedent in the strict sense. For any given district court opinion to be available as a reference for lawyers, judges, and others beyond the parties, the publisher had to view it as sufficiently important to warrant publication. Some district judges sought publication of their opinions. Others were indifferent.4 Publishers of loose-leaf services covering particular areas of law in depth-environmental, intellectual property, or labor, for example-routinely included district court decisions passed over by the editors of the general-purpose Federal Supplement reporter. Opinions disseminated in that fashion or even informally enjoyed no lesser authority.