Whether a CCA opinion is published has enormous consequences for stare decisis purposes.  In the past, we’ve noted the phenomena of missing NMCCA published opinions and an originally published NMCCA opinion that was somehow transmogrified into an unpublished opinion

Now we have the curious case of the AFCCA’s opinion in Blazier.  Is it a published opinion or not?  I’m not sure.

Look at AFCCA’s web site and navigate to the 2008 opinion page.  Scroll down to 8 September 2008, and there you  will see United States v. Blazier, No. 36988.  And what does it say right next to the ACM  number?  “Published”  Click on the link and at the top of the opinion, you will see “__ M.J. __”  Now look at the opinion on WESTLAW.  (It’s at 2008 WL 4525781.)  And what’s the first thing you see under the case name?  “Not reported in M.J.”  Well why the heck not?  AFCCA’s web site still lists it as a published opinion.  So is Blazier–a case dealing with Crawford v. Washington’s implications for the admissibility of lab reports arising from two different kinds of urinalyses–binding precedent within the Air Force or not?  As I said earlier, I’m not sure.

10 Responses to “When is a published opinion a published opinion?”

  1. John O'Connor says:

    I know courts high and low adhere to it, but I have to say that the published/unpublished dichotomy for stare decisis strikes me as, to use a legal term of art, “stupid.”

    If a court doesn’t want a case to have any precedential effect outside its precise facts, it’s decision should just announce the result and leave it at that. If the court reaches some legal conclusions, then those conclusions ought to bind lower courts regardless of whether the case is denoted as published or not.

    Also, I’ve never really been a believer that a court that sits in panels should be bound by the decisions reached by a prior panel from the same court. I think the law develops better when a panel is bound by higher authority but makes its own calls when the only precedent is another panel’s decision on the same court. If that creates splits, the court should do the sensible thing and rehear it en banc. But it retards the development of the law when a panel thinks a prior panel’s decision is wrong but adheres to it and then hopes the court might take the issue en banc (when the panel’s grudging adherence to prior court precedent means there’s no split creating an urgency for en banc).

  2. Anonymous says:

    I agree with JO’C – and would note, if a decision is not worthy of being COMMERCIALLY published, and the opinion is 10 pages long, it’s already jurisprudentially suspect.

  3. Look, Man says:

    I have always been fascinated by arcane legal concepts. The ancient “published vs. non-published” distinction is cute and quaint, but of limited or no value in today’s electronic data perfused world.
    In today’s world does “unpublished” mean- “we are a bit ashamed of this thing so we do not want to ever have it waived in our faces again?” Or “we are not so sure about this so we may later change our minds.”

    Other ideas?

  4. Anonymous says:

    Maybe unpublished fills the role of, other panels are not on board with this and we don’t want to bind them with our decision.

  5. Bridget says:

    I have dealt with some appellate decisions in civilian [state] courts, where it appeared the court did not want to issue the first published decision in a case that was a matter of first impression or on a controversial topic. Then, of course you could get that California oddity, the de-published decision.

  6. blah says:

    Why is anyone bothering to make sense out of what a CCA does and worse, trying to think it’s something other than total BS designed to railroad appellants? See Denedo (Roberts, C.J., dissenting). xoxo HTFH

  7. Anonymous says:

    Well man, and here I thought that was my job, to make sense out of what CCAs do.

    Oh well, nothing I could possibly do will work so I might as well start looking for a new job.

  8. Phil Cave says:

    Quantum flux. My play on Gabriel Fournier’s, The Eclipse Of Infinity, which The Onion says that dthe new science-fiction novel makes more than 80 separate references to “quantum flux,” a vaguely defined force the author uses to advance the plot, resolve conflict as needed, and account for dozens of glaring inconsistencies.

  9. Anonymous says:

    Perhaps those who seem to make a living out of criticizing the CCA’s should consider moving the service court’s to publish specific cases when they fail to do so.

  10. Anonymous says:

    I would be happy if the CCA’s could at least get the “Facts” presented accurately, which is a far bigger problem than whether or not they decree by fiat that an opinion that is published, is bound by the fiction that it is unpublished.