My good colleague at NSU, Professor David Cleveland, has either published, or is in the process of publishing, four articles that discuss various aspects of unpublished opinions. They've been generating a lot of cyber-buzz and we wanted you to know about them.
The first is Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions" Journal of Appellate Practice and Process, 10 J. App. Prac. & Process 61 (2009) and can be found at http://ssrn.com/abstract=1023691. It advocates a return to full precedential status for all federal court decisions based on Constitutional and community-based principles. It's a very detailed look at the history of publication and precedent in the common law system, the American experiment with unpublished opinions, and the unraveling of that experiment due to technology advances and legal community demands.
The second article is Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System92 Marq. L. Rev. 685 (2009) and is available at: http://law.marquette.edu/lawreview/summer2009/Cleveland-FINAL.pdf. This one examines what the Court has ruled, what petitioners have argued, and what individual Justices have stated in scholarly writings and separately written opinions about unpublished decisions. It reveals that the Court has never accepted the circuits’ assertion that these cases lack precedential value, but neither have they granted certiorari and addressed the issue directly. It also argues that the Constitutionality of denying unpublished decisions precedential value is ripe for Supreme Court review and given the fundamental nature of the issue, litigants ought to vigorously seek certiorari and the Court should grant it.