Having been discovered by Crescat Sententia, I discovered there another opinion against citation to "unpublished" case law. And so, notwithstanding my earlier post on this subject, here is another:
One of the points W. Baude makes is that allowing the use of unpublished cases favors the rich lawyers and the big firm lawyers. I disagree. My firm is small, I'm not rich, and I'm no research wizard, but I can find cases. The computer is a great equalizer as to all that is on Westlaw or Lexis or even footloose on the Internet. The difference between my research and that of some big firm (or the government, or big corporations) is that they have access to the really "unpublished" opinions and orders (from trial courts, mostly) not to be found in any public database, because they are litigating the same narrow issues everywhere. (For example, in one case years ago, in-house counsel with a big national organization sent me about a dozen preliminary injunction orders from similar cases the same client had litigated all over America.) Fortunately, courts like the W.D. Va. are making more opinions available online, even if they are not "published," and you can bet I read them all. It is my view that allowing citation to unpublished opinions, coupled with open access to those opinions, has a democratizing effect - I here in the hills can find that "golden" case from Alaska (for what good it might do in helping me convince some judge in Virginia).
One area in particular where I have tried to cite unpublished cases, over and over and over, is where the issue is qualified immunity in a section 1983 case, and the question before the Court is about the state of the law at the time the defendant acted, whether the plaintiff's constitutional rights were clearly established at that time. Unpublished opinions, even if they are wrong and ill-conceived, can be pretty good "evidence," in my view, that the law was not clearly-established - if appellate judges, even on a bad day, don't see the constitutional right at issue as clearly established, how can my client be on notice that their actions would violate this plaintiff's rights?
The late Judge Murnaghan (who made a great impression on me) wrote in the Wilson v. Layne case that unpublished opinions should not be considered on the issue of qualified immunity, because "it is well known that judges may put considerably less effort into opinions that they do not intend to publish." In particular, he expressed the concern that "[b]ecause these opinions will not be binding precedent in any court, a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law." I can't disagree with what Judge Murnaghan says about about how judges work, although some say the primary function of the unpublished opinion is to allow judges and their staffs to devote more time and attention to the cases that require more intensive legal analysis, without depriving the litigants of an explanation for the decision. See POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM (1996) at page 169. An opinion dealing with a “novel issue of law” would seem to be of the very kind that requires "more intensive legal analysis," whether it gets published or not, and when qualified immunity is raised, the novelty of the constitutional issue is precisely what the defendant must argue in support of the defense.