One of my pet peeves is the rule against even mention so-called views "not precedential" or "unpublished" in underpants before the federal courts of appeal. Dennis Crouch and Law.com both denounce the Supreme Court has now voted to change the long-standing rule and allow that he cites that such decisions previously out of bounds. It is time.
This whole question of decisions "not precedential" has always struck me as silly and dishonest. It is like saying some historical facts and events are "not citable", and therefore outside of the scope for inclusion in the history books. Happened something or not. The Tribunal decided something or not. If you are going to pay attention to pay to the idea of stare decisis - and there are serious doubts whether we should even - is intellectually dishonest to gut the principle simply pretending some inconvenience cases decided never to.
Surprisingly, Kozinski judge 9th district - a judge who respect and generally under - opposed the rule change and supports keep the way things are. In his words, "when the people doing the sausage tell them is not safe for human consumption, seems strange fact that a Committee in Washington tell people to go ahead and eat it anyway." True. But the real problem lies not with the Commission, but with faulty sausage itself. If future litigants should not have to consume "sausage" Irreflexive decision, why should the parties in this particular case has to eat well?
As reported in the article Law.Com, "Judge Alex Kozinski, the main opponent of the rule, change says unpublished opinions were so designated for one reason: they are drafted 'totally' by right employees and staff lawyers." Thanks for the explanation, the judge. I am sure that offers great comfort to whom great lost as a result. (Personally, I suspect this procedure also true for even published opinions, but that is a matter for another day.)
Fundamentally, however, the problem is not with whom written decisions and what level of detail. The real question is whether all or just some, will decide on the basis of the law and facts entrusted by the people, not to mention payment, by the company to do so. Or we will tolerate the corners of the Court and to sweep the problem under the carpet by designating the most embarrassing results "not precedential"? If it is, ultimately, overburdened courts - and may well be-, then, that anyone has to provide the resources to do the job right, or perhaps rethink and trim, what matters should even be delegated to the courts in the first place.
沒有留言:
張貼留言