Opinions of Precedential Caliber

On Monday, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia issued a decision in the case of Tax Analysts v. Internal Revenue Service. The Court ordered the IRS to release written advice rendered to regional employees by attorneys in the IRS Office of Chief Counsel's national office in less than two hours. The case has been well covered in the tax regions of the blawgosphere, but somewhat ignored elsewhere. It should not be.

There was a time where limitations that were placed on the access to interpretive material, whether administrative or judicial, were justified on the basis of their cost. Thus, opinions of the Court of Appeals of Maryland, Maryland's highest court, have always been published. Opinions of the intermediate appellate court, the Court of Special Appeals, are only published when the Court find's them significant enough to be precedential.

Although somewhat different, the U.S. Tax Court used to draw a distinction between decisions that were reviewed by the entire court and memoranda decisions. The latter were not "officially" published, although they were available through commercial services. Now there is a third, lower tier, category, that of summary opinions. However, all of the opinions of the Tax Court are "published" on the Court's website. That is not the case, for instance, with the non-published opinions of the Maryland Court of Special Appeals, for instance, which are only available, for a fee, either from the Court or from a commercial service. I suspect that this is true with respect to a large number of other intermediate appellate courts in the country.

At the federal level, I suppose that it could be argued that all opinions are published since one can obtain an opinion, for a fee, via the Administrative Office of the Courts' PACER service. However, that is not the same as open web access to all issued opinions. At the appellate level, some circuits offer reasonably decent access. The Fourth Circuit, for intance, "publishes" all opinions, even those that will not be accorded precedential value. Not all of the courts of appeals are so open. The Tenth Circuit's website currently has this wonderful statement: "Opinions of general interest to the public are posted here. There are currently no opinions of general interest." To obtain copies of opinions of the Tenth Circuit that may not be of "general interest" one has to go either to PACER or to websites maintained by Washburn University School of Law or Emory Law School.

At the district court level, things are even more hit or miss. Thus, the U.S. District Court for the District of Maryland maintains a website for its opinions, but only certain judges (Motz, Chasanow, Bennett, Blake, Davis) seem to regularly post their opinions. Most of the judges rarely or sporadically post their opinions. My limited experience with searching for opinions in other district courts or bankruptcy courts suggests that judges in other districts have even a lower rate of publication.

Today, there is no reason not to allow wide publication of judicial decisions. As a matter of philosophy, it has always seemed to me that the "default" rule with respect to judicial proceedings is that they are open to the public. By way of example, the files of all cases are open for review by all and sundry. Cases are sealed only in specific and limited circumstances.

This principle should be extended to the written opinions of all courts. The excuse that the expense of making them available simply will not fly because the cost of widely disseminating and searching them is almost trivial. The public has an interest not only in having judicial proceedings being "narrowly" transparent (i.e., having to go to the court to pull a file to look at an opinion), but "widely" transparent as well.