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Copyright (c) 2002 The Green Bag, Inc.
The Green Bag An Entertaining Journal of Law

ARTICLE: Publishing Unpublished Opinions: A Review of the Federal Appendix

Spring, 2002

5 Green Bag 2d 259


Brian P. Brooks


THE CONCEPT OF the legal fiction is well known by most lawyers - not as "fiction" in the literary sense, of course, but in the philosophical sense of useful hypothesis or construct. The concept of the fertile octogenarian, the parol evidence rule, and the doctrine of dying declarations are all legal fictions in this sense. The judicial prejudice against unpublished opinions was also a legal fiction for many years - the fiction being that unpublished opinions would be treated by courts as if they didn't exist because they were relatively inaccessible to many lawyers, were thought to involve only well-established legal principles, and were otherwise unsuitable for the precedential status usually accorded to decisions of the federal appellate courts. Over the years, of course, the basis for this fiction quietly eroded, as electronic research services began carrying more and more appellate opinions designated as "unpublished," and specialized segments of the bar developed their own means of disseminating important but unpublished opinions to their members and other interested parties. Still, though, the appellate courts operated as though these opinions merited a different status from other opinions, and relied on the fact that they were "unpublished" in the traditional bound reporter volumes to justify this differential treatment. While this legal fiction was criticized in many quarters, n1 at least it remained a fiction in the philosophical sense (of useful hypothesis or construct) rather than the literary sense (of a story bearing no intended resemblance to reality).

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