Over the last two months, the Court of Appeals has issued almost 160 opinions. The vast majority of those opinions are unpublished; the court is issuing about 7 unpublished opinions for every published opinion. So the default rule seems to not to publish opinions.
This is interesting for several reasons. First, Code § 17.1-413(A) says that “[o]pinions designated by the Court of Appeals as having precedential value or as otherwise having significance for the law or legal system shall be expeditiously reported in separate Court of Appeals Reports . . . .” (That said, even unpublished opinions remain useful. Under Rule 5A:1(f), “[t]he citation of judicial opinions, orders, judgments, or other written dispositions that are not officially reported, whether designated as ‘unpublished,’ ‘not for publication,’ ‘non precedential,’ or the like, is permitted as informative, but will not be received as binding authority.”) It’s not at all clear that the court’s unpublished opinions lack “significance for the law or legal system.” Some of them are interesting! Some of them have dissents! One recent opinion rejected a party’s effort to rely on decisions out of Oklahoma and New Hampshire interpreting the Uniform Trust Code when he could not find Virginia authority on point. We could solve that problem by publishing this opinion!
Second, this whole published/unpublished dichotomy is weird and archaic. I can find unpublished opinions just as easily as published ones on Lexis and Westlaw. For non lawyers, both published and unpublished opinions are accessible from the same page of the court’s website. That one group of these opinions will be published in a bound reporter some years from now and placed on a bookshelf in a library makes about zero practical difference to a modern researcher. Nobody uses the reporters.
Third, I can’t figure out why “unpublished” would be the default choice. Isn’t it fun to make law and publish things? Here are my hypotheses, none of which are totally convincing:
- The unpublished opinions lack precedential value or significance for the law (“These opinions are boring, and that makes sense because most of the court’s work is boring.”). This is certainly true for some of the opinions, but others seem pretty interesting. It’s hard to see how a case with a dissent, or an opinion noting a lack of Virginia authority on a point lacks significance for the law. Also, while there may not be anything legally groundbreaking in, say, an opinion applying the parol-evidence rule or the standards for expert witness testimony, just seeing those rules applied across a broad run of cases has value to practitioners. So I’d consider them significant for the law, if only because they save me from citing cases from the Kennedy and Johnson administrations.
- Workflow management (“The judges are lazy!”). Well, no. It looks like they’re putting as roughly as much work into a lot of the unpublished opinions as the published ones. These aren’t all 3-page per curiams.
- Vulgar legal realism (“This is all just an exercise of power in accordance with our priors, so no sense pinning ourselves down if we don’t have to!”) Yeah, probably not. But it’s nice to know that Duncan Kennedy is still kicking around in the back of my brain somewhere.
- Interpanel accord (“We’re pretty sure that we’re right but we don’t want to bind those other judges without giving them a say.”) Maybe? Under the interpanel-acord doctrine, only the court sitting en banc or the Supreme Court of Virginia can overturn a panel decision. This rule applies both to the literal holding of the case and to its essential rationale. So you can imagine a norm developing under which a panel is hesitant to issue a published opinion that will bind the other judges who haven’t weighed in on the issue. This would be especially plausible where, as here, a large percentage of judges are relatively new to the court.
 Some of them, of course, are routine and tedious–for example, dismissals for procedural defaults.