An unfair system has evolved over the past fifteen years in the federal courts. The federal courts changed the concept of stare decisis. In 1972, the Judicial Conference of the United States decided that they needed to reduce the increasing workload of the federal judges. The best way to do so, they thought, was to distinguish between decisions. Some would be worthy of publication and some would not be. Thus, federal judges were instructed to separate out those rulings which would be useful to future litigants or which did more than merely repeat and mechanically apply well-settled rules of law. These decisions would be published. If a judge felt that a decision would not have "precedential" value, the decision and accompanying opinion would not be published. Although this seemed like a sensible solution at the time, it has created several unfavorable consequences. Since more than fifty per cent of all federal opinions are no longer published, a significant body of unpublished case law has developed. And the unfavorable consequences are directly tied to the non-publication of these decisions.
Peter Jan Honigsberg and James A. Dikel,
Unfairness in Access to and Citation of Unpublished Federal Court Decisions, 18 Golden Gate U. L. Rev.