Why do state courts not allow unpublished opinions to become persuasive precedent?

Answer 1

Unpublished opinions are typically shorter and provide less documentation than a formal opinion. Because of the heavy workload, the court may not be able to take the time to provide a complete set of facts, all of the references and arguments involved. As such, they don't want it to be used for setting precedent. It does not mean that the court hasn't been very diligent in evaluating the situation and making its ruling. It simply means there was nothing particularly notable about the case that the court felt added to the body of law. So they did not see value in publishing the case.

Only recently have the Federal Court Rules been relaxed to allow unpublished opinions to be referenced. To understand what the means fully, continue:

Further Refinement

This question needs some refinement, because it uses of the term "persuasive precedent," which can be confusing when it comes to published and unpublished opinions.

"Precedent" has several forms. One is primary or binding precedent, which must be followed. Another is secondary or persuasive precedent, which need not be followed but can serve as guidance to other courts on how an earlier court treated the same point of law.

Unpublished opinions are not primary/binding precedent but they are secondary/persuasive precedent. It is possible that this question actually refers to binding rather than persuasive precedent and this should be clarified.

The reason for the difference is that while many court cases have opinions, they are not all approved for publication. "Approved for publication" means approved to be published in the state's official case reporter system so that they are available to be used as precedent. Some opinions are not approved because they are either poorly written, have obvious mistakes that would be reversed on appeal, contain useless or misleading dictum or are simply repetitive of cases already published. For these reasons, their precedential value, whether binding or persuasive, is limited, therefore they are not put into the official reporter.

In addition, years before electronic media, unpublished opinions were not generally known to the public, attorneys or parties. If one were cited in a brief or court opinion, they could not be read to see if the cited opinion was relevant.

An "opinion" is a written explanation by a trial, appellate or supreme court of the basis for its ruling. Typically, it states the facts of the case, then states the law that is at issue, then applies the facts to the law to arrive at its ruling. There are hundreds of such "opinions" given in state courts every year and not all of them can or should be put into the official case books.

An "unpublished opinion" is not a hidden opinion. All court opinions are part of the file and open to the public. They are given to the attorneys and parties of the case so that they may understand the ruling of the court. In addition they are readily available to the general public both electronically and physically for the asking. When the parties receive their copies of the court's opinion, they are free to do whatever they wish to do with them, including sending them to a local newspaper, national magazine or a television news station. In other words, they can "publish" them in the ordinary sense of the word.

State courts have rules governing which opinions get published. Trial court opinions are rarely published in the official case book, because they are not binding on other trial level courts or upper level courts such as appellate and supreme courts. Most appellate court opinions are published, since they are binding on the trial courts although they are not binding on other appellate or supreme courts. In most states, all state supreme court opinions are published because they are binding on all lower appellate and trial courts.

The modern view of published or unpublished opinions has been relaxed to a small degree. Previously, unpublished opinions could not be used at all. Now, they may be used as secondary/persuasive precedent as long as copies of the unpublished opinion are given to the court and all parties. Nevertheless, unpublished opinions are still not to be cited in court opinions.