The Legal Intelligencer reported yesterday that the Pennsylvania Superior Court has, since July 1, been identifying the authors of “memorandum” opinions:

President Judge Correale F. Stevens said there was a strong consensus among the court’s judges to make the change, which has been in effect since July 1. He said lawyers have a right to know who authored memos in their cases, but cautioned that such non-precedential decisions — the majority of the Superior Court’s work — are still not for citation in legal briefs.

“We want the bar to know that we are responding to things they’ve expressed concern about,” Stevens said in an interview with The Legal. “It’s more of an openness issue.”

Howard Bashman has the whole article up at his site. But there’s still the same old caveat:

Appellate attorney Howard J. Bashman, who writes a column on appellate law for The Legal, welcomed the change but said the state’s legal system is equipped with the requisite technology to make the decisions available to lawyers on the Internet without burying the legal research process in a slew of conflicting opinions.

…Stevens said the court has discussed the idea of making all of its decisions researchable online but is holding off for now.

“That may happen in the future,” he said.

There are three issues of concern here.

First, there’s the issue that has apparently just been resolved, i.e. the routine use of “per curiam” opinions that conceal the actual author of the opinion. You could say that, in theory, it doesn’t matter to the parties of the case which judge wrote the opinion, because it’s the law just the same, and knowing the name of the author isn’t going to change anything. (Such would present ‘merely’ a democratic problem, given that we in Pennsylvania elect our judges to limited terms and so should know what a judge up for re-election or election to another court has been doing with their position.)

But that ignores the reality of appeals, legal research, and legal scholarship. The identity of an opinion’s author is critical for parties deciding whether or not to appeal a decision to the entire court en banc or to the Pennsylvania Supreme Court. If, for example, you as a defendant lost in front of a Superior Court judge who is typically favorable to defense arguments, then you’ll factor that into your decisiomaking. Even before an appeal, if you’re at the trial level and are researching if a lawsuit should be filed at all, what claims to raise, how to prepare your client’s defense, or how much a case is worth for purposes of settlement, then it undoubtably matters what the actual judges think of the law so you can factor that in accordingly.

Same goes for legal scholarship. Judges are not fungible. They have different, and often predictable, views on legal issues. For anyone, be it a professor, a legal writer, a legal reporter, or a clerk, studying the law, it’s critical to know exactly who was writing an opinion to understand and to predict what other judges would think of the same.

Second, there’s the problem of “non-precedential opinions” in the first place. Temple’s Richard Cappalli, among others, has made a persuasive scholarly argument against them. The Committee for the Rule of Law, established to oppose a California rule permitting courts to “depublish” opinions (an issue I had a run-in with in a federal district court), has a collection of law review articles challenging unpublished opinions.

Personally, I don’t think the common law tradition permits such a thing as a “non-precedential opinion”: when a court decides a legal issue, it creates precedent whether it wants to or not. It makes sense to allow courts to designate certain “unpublished” opinions as having been written only for the parties (without giving much thought to guidance for future courts) and having not been circulated among the full court prior to publication, but it doesn’t make sense for courts to pretend that those cases were never decided. If a court isn’t willing to stamp its own ruling with its imprimatur, then why should that ruling even be binding on the parties?

The federal courts already partially fixed this problem a few years ago by amending Federal Rule of Appellate Procedure 32.1 to prohibit individual federal Circuit Courts of Appeal from disallowing the citation to non-precedential opinions. Sure, the judges can think whatever they want inside their individual brains, but they can’t pretend that the “non-precedential” opinions aren’t out there and didn’t decide legal issues.

Third, there’s the problem of access, which regrettably is a problem in the federal system, too; consider the RECAP program. Every litigator in Pennsylvania has had their case decided by a “non-precedential memorandum opinion” that included a thorough, detailed, and useful description of the legal principle — just to see that opinion lost down the memory hole because it wasn’t accessible to the rest of the bar.

The end result has been the creation of a shadow legal system in which hundreds of cases are decided every year by way of “non-precedential opinions” that aren’t available to anyone other than the parties and which can’t be cited subsequent briefs. In addition to being undemocratic and encouraging bad habits, the system stifles the development of the law and hinders the decision of pending cases.

Frankly, I have yet to hear an argument in favor of the current system — it looks like The Legal Intelligencer was unable to find anyone willing to say there was some social value to this secret justice system. Maybe the only ‘value’ is that judges can put less time and effort into deciding cases if they know the opinion won’t be widely disseminated; that’s not a feature, that’s a bug.

So I have a proposal for the Pennsylvania Superior Court (and any other Pennsylvania courts). Let’s jump straight from the 19th century to the 21st: talk to about starting a pilot program to make all opinions, unpublished or published, easily searchable online. Google has a heck of a legal research search engine already. I’m sure Carl Malamud will make time for you.