A soon-to-be De Novo Survivor contestant recently ruminated on the Supreme Court's declaration that as of December 1, all federal court decision are to be published and citable.
[W]hat was the problem in the first place, I mean… a judge is a judge. It's not like they're allowing us to cite to Judge Judy… right? Not so according to Judge Kozinski of the 9th Circuit:First, Judge Judy was a New York judge for 24 years, and was supported by many public commentators, ranging from Kurt Vonnegut to Richard Cohen to James Lileks, as a replacement for Justice O'Connor. Second, since we're getting into a competitive mindset, there should be a prize to the clerk who gets the most bizarre low-culture footnote into a judge's opinion in the next year, something like a trip to L.A. to watch a taping of Judge Judy...At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys. He added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."OK, so 80% of judicial opinions are the equivalent of fatal sausage.[...]
Now that I know more about who is writing opinions, I understand where this wonderful Billy Madison reference in a Federal Bankruptcy Court came from. I'll be interning for a judge for part of this summer, so who'd like to see a Judge Dredd quote?
Because I'll be working in the private sector this summer and have no power over judicial opinions, I can't compete, but that does mean that I might be able to afford to give away the prize. If anyone would be interested, send me an e-mail before a judge's opinion is officially published, telling me what will be referenced and in which footnote it will be. At the end of the clerkship year, around August 2007, I'll send $500 (enough for a round-trip flight to LAX from most of the country) to the winner. I'm going to limit this to opinions from the highest court of a state; federal district, circuit and supreme courts; and the chief chancellor on each of the courts of chancery, because the hiring bonus for anyone who clerks on those will far outweigh my petty prize, and they'll be acting for love of the joke. Staff attorneys also are eligible, though this seems like a riskier proposition for them.
My prediction is that no one will be able to slip in a really strange footnote that her judge doesn't notice. Kozinski may leave the duller opinions entirely to clerks and attorneys, but I doubt that he doesn't at least glance at what will go out under his name. His own letter to then-Judge Alito supports this, as he says that "these dispositions were drafted by our
central staff and presented to a panel of three judges in camera, with an average of five or ten minutes devoted to each case." Unpublished opinions may be rife in cases in which judges are comfortable with a ruling for particular situation that they would not want treated as precedent in whatever case a lawyer wants to raise as parallel. That doesn't necessitate that they be less professional than the Marburys, Mirandas and Chevrons, only that they not be as appropriate to cite.