Actually, I come back humbly to confess partial error for not quite up-to-date research. (Just like some of your students.)

I see that the wide use of "not for publication" and "not to be cited a precedent" caught the attention of Congress. The practise of restricting opinions seems to have picked up speed in 1973 with the result --- here's an amazing statistic --- that 81 % of federal court of appeals' cases were designated "unpublished" in 2005. The effect of such a designation was that the case could not be cited in other cases.

Congress altered the Federal Rules in 2006 to prevent the practise for opinions published in federal courts after 2007. As a result, even if the court calls the case "unpublished" or "not for precedent" other federal courts are free to ignore the designation.

In addition, the E-Government Act of 2002 now requires that all opinions of the Circuit Courts of Appeal be published in "publicly accessible electronic database" regardless of whether the court has marked them "not to be published" or "not precedent."

However, I also see that almost all state courts still permit judges to designate opinions as unpublished or "not for precedent" and that most state courts refuse to consider such opinions as precedent.

So, I guess I was partly right and partly wrong. B-/C+ ????





---------------------------------------------
Matthew P. Harrington
Professeur
Faculté de droit
Université de Montréal
Montréal, Québec
514.343.6105
matthew.p.harrington@umontreal.ca
----------------------------------------------


-----Message d'origine-----
De : Gerard Sadlier [mailto:gerard.sadlier@gmail.com]
Envoyé : 25 février 2014 10:28
À : Harrington Matthew P.
Cc : Lionel Smith, Prof.; Peter Radan; obligations@uwo.ca
Objet : Re: Written Judgements

Matthew, all

This is a most interesting discussion.

In Ireland, written judgments are usually published in the Superior Courts, our High Court (including the Central Criminal Court) Supreme Court and Court of Criminal Appeal.

Oral judgments are also sometimes delivered.

Except in special cases, judgments must be delivered in public and can therefore be transcribed by the parties (or presumably by an interested third party).

The publication of written judgments is, it has to be said, haphazard and some judgments can wait weeks or even months before publication on the Courts website.

At Circuit and District ("lower court") level, written judgments are unusual. Even if a written judgment is produced it is rarely published.

This is lamentable, since those courts (especially the circuit court) deal with very important and complex issues, such as many revenue matters and many issues of landlord and tenant law.

On a separate issue, I was struck by Matthew's account of Federal Courts in the US purporting to restrict the precedential value of their judgments. On what basis is this done and are such statements in fact respected by later courts and lawyers? In other words, do later courts ignore the statement that the decision should not be relied on and refer to it anyway?

Ger

On 2/25/14, Harrington Matthew P. <matthew.p.harrington@umontreal.ca> wrote:
> I know in the American context written judgements are routine, but not
> required. In fact, in some cases, federal courts will permit the
> release of a written opinion, but it will bear a notation that it may
> not be published in a law report or cited as precedent. I suppose in
> effect it decides the case before the court but that's it.
>
> ---------------------------------------------
> Matthew P. Harrington
> Professeur
> Faculté de droit
> Université de Montréal
> Montréal, Québec
> 514.343.6105
> matthew.p.harrington@umontreal.ca
> ----------------------------------------------
>
> De : Lionel Smith, Prof. [mailto:lionel.smith@mcgill.ca] Envoyé : 25
> février 2014 09:48 À : Peter Radan; obligations@uwo.ca Objet : Re:
> Written Judgements
>
> I once read a book entitled The History and Origin of the Law Reports,
> which includes several passages from evidence given to that committee by Lord St.
> Leonards:
>
> "The Judges cannot be required to write their judgments; that must be
> left to their own discretion."
>
> "It is not probable that there will hereafter be more than one Report
> of the proceedings of each Court."
>
> "... any man who wants an old Report which is not on his own shelves,
> is sure to find it in the library of his Inn."
>
> Lord St. Leonards, submission to a Committee of the Bar inquiring into
> the system of law reporting, 12 February 1864; quoted in W.T.S.
> Daniel, The History and Origin of the Law Reports (London: W. Clowes
> and Sons Ltd.,
> 1884) at 102-103.
>
> Lionel
>
>
>
> From: Peter Radan
> <peter.radan@mq.edu.au<mailto:peter.radan@mq.edu.au>>
> Date: Tuesday, 25 February 2014 at 8:58
> To: ODG <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Subject: Written Judgements
>
> Colleagues,
>
> This is a query not specifically focussed on obligations. It has to do
> with court judgments being in some written form and court reporting.
>
> On page 1216 of the Volume XI of The Oxford History of the Law of
> England (2010), there is reference to a claim made in in The Times of
> London to the effect that, in the 1880s or thereabouts, '99 percent of
> [common law] judgments were still unwritten'.
>
> On the following page there is mention of the failure of a committee,
> set up to look into the publication of authorised reports of cases, to
> pass a motion calling for the introduction of a requirement that all
> judgments be written, 'so far as practical'.
>
> This brings me to my question: When, if ever, did the requirement that
> judgments be in written form come into force?
>
> If anybody can shed any light on this with respect to their own
> jurisdictions, I would be most grateful.
>
> Many thanks in advance.
>
> Peter Radan
>
> --
> Professor Peter Radan
> Macquarie Law School
> Faculty of Arts
> Macquarie University NSW 2109
> AUSTRALIA
>
> Tel: +61 (0)2 9850-7091
> Fax: +61 (0)2 9850-7686
> Email: peter.radan@mq.edu.au<mailto:peter.radan@mq.edu.au>Colleagues,
>