In his article, In Defense of Unpublished Opinions, 60 Ohio St. LJ. 177 (1999), Chief Judge Boyce F. Martin, Jr. has recently and eloquently championed judicial reliance on unpublished opinions. Judge Martin, who speaks from more than two decades of service on the United States Court of Appeals for the Sixth Circuit, substantially improves understanding of this court. Judge Martin informally and pragmatically scrutinizes critical problems that confront the modern regional circuits through the prism of unpublished determinations while elucidating judicial dependence on these decisions. Judge Martin apologizes for the dearth of empirical data on the decisions' invocation, but the jurist affords subjective opinions, personal views, and revealing anecdotes based on practical experience.
Judge Martin also impeccably timed his article's publication, which coincided with the December 1998 issuance by the Commission on Structural Alternatives for the Federal Courts of Appeals (the Commission) of its final report and suggestions. The Commission had one year to study the appellate "system, with particular reference to the Ninth Circuit," and to write a report with recommendations for such change as may be appropriate for prompt, fair, and effective caseload resolution. The thorough Commission evaluation illuminates Judge Martin's endeavor and supplies some information that Judge Martin did not. For example, the commissioners indicate the percentage of oral arguments provided and visiting judges employed by each court. These propositions mean that In Defense of Unpublished opinions warrants a response and that its ideas can be usefully compared with the Commission work. This essay undertakes that effort.
Carl Tobias, Chief Judge Martin and the Modern Sixth Circuit, 49 Am. U.L. Rev. 1059 (2000)