Edward Lazarus writes this article on Findlaw, opposing the proposal to change the Federal Rules of Appellate Procedure to allow citation of unpublished opinions. The article is an accurate (and thus depressing) portrayal of the current state of appellate decision-making, especially from the perspective of an attorney representing the solitary Social Security Disability benefits claimant. Mr. Lazarus writes:
Given the avalanche of federal litigation, appellate judges are constantly engaged in triage. They must separating the relatively routine cases, to which they will devote relatively little attention, from the more difficult and complex cases that require a substantial investment of judicial resources.
The U.S. Court of Appeals for the Ninth Circuit, for example, has a formal process for “weighting” cases. Under this process, the Court Clerk assigns each case a numerical degree of difficulty ranging from 1 to 10. Judges can then look to the weighting as a rough benchmark of the degree of difficulty the case is likely to present.
And even in Circuits that lack a formal system like the Ninth Circuit’s, appellate judges, by necessity, will reserve their time and energy for those relatively few cases that will make new law, or are of unusual significance. And it only makes sense for them to do so — just as it makes sense for a surgeon to give the person with cardiac arrest more time and care than the person with a hangnail.
If what Mr. Lazarus says is true (and there’s little reason to doubt it–just read Judge Posner’s take on this issue in Howard Bashman’s 20 Questions), most Social Security case becomes “routine,” receiving little, if any, attention from federal appellate judges. In the Fourth Circuit, where I practice, the number of two-paragraph, per curiam, unpublished decisions in Social Security cases would suggest that Mr. Lazarus hits the nail on the head. A rule change would make little practical difference in these cases; even now, the Court rarely addresses the merits of the claim in its unpublished decisions.
Tradeoffs are made, and to best use scarce judicial resources, perhaps they must be. Still, the routine treatment of routine cases can be a painful and abiding reminder that perfect justice doesn’t exist in a very imperfect world. When a per curiam decision affirms, without discussion, a decision denying any hope of an income, the “routine” man with the “uncomplicated” case is dealt a devastating blow. Perhaps some explanation from the Court, beyond the we’ve-reviewed-your-case-and-find-no-error, would soften the blow. It doesn’t usually happen, and that’s a shameful thing.
