In Aratoon v. Roberts, decided today by the Virginia Court of Appeals, one of the issues was Mr. Aratoon's claim that the Circuit Court erred by its reliance on an unpublished opinion of the Court of Appeals. He claimed that by relying on an unpublished opinion, the court "violated 'well-settled principles of legal research and allow[ed] for an uneven playing field' and thereby acted in a manner 'unfair and patently prejudicial' to Aratoon."
In the opinion by Judge Kelsey, the Court dismissed this argument by pointing out that unpublished opinions are not binding authority.
Years ago, there was the famous Anastasoff opinion, in which Judge Richard Arnold of the Eighth Circuit concluded that "unpublished" opinions are as binding as published ones, and any court rule to the contrary was unconstitutional.
Sometime later, Rule 32.1 of the Federal Rules of Appellate Procedure was proposed, to establish a nationwide rule that prohibited the federal courts of appeals from outright prohibition against citation to "unpublished" opinions. As I noted here, some famous lawyers were opposed Rule 32.1. Part of the debate about was sort of what Mr. Aratoon was claiming, that some litigants might have less access to the "unpublished" law than others. In particular, the government would have more access to the law, in those areas of the law such as the criminal law and tax law, where it is a party to every case.
In the age of Google, such a claim is increasingly preposterous. The Aratoon decision itself, though unpublished, will live on and become part of what researchers find when they search the internet with the terms "unpublished" and "level playing field." The unpublished Court of Appeals opinions are mostly accessible online, to those who chose to read them - including the Smith opinion, that Mr. Aratoon claims was unfairly used against him.