In this month’s Bench & Bar of Minnesota, Minnesota Supreme Court Justice David L. Lillehaug and his former clerk, Nathan J. Ebnet, published a thoughtful and well-researched article entitled, “A Fresh Look at the Problem of Unpublished Opinions.”
The authors point out that the number of so-called “unpublished opinions” by the Minnesota Court of Appeals has sky-rocketed over the past decade to the point in 2015 when 92% of the Court of Appeals’ decisions were designated “unpublished.”
Justice Lillehaug and Mr. Ebnet point out that “an overwhelming majority of practitioners favor continued publication of all opinions,” (based on a 1986 survey) but they conclude with four proposals that stop short of advocating for the abolition of “unpublished opinions.” Instead, they suggest that the Minnesota Court of Appeals should issue fewer of them.
In my opinion, the authors do not go far enough. The “overwhelming majority of practitioners” were right. The very words, “unpublished opinion,” reflect an embarrassing legal contortion, an oxymoron. The doublespeak is particularly galling because so-called “unpublished opinions” play a part in our justice system, of course. The use of clear and precise language is an absolutely essential part of any claim to justice or fairness.