In New Jersey, as in other states, unpublished opinions have a quasi-outlaw existence. According to the New Jersey Rules of Court, unpublished opinions are not precedential. By court fiat, the court system has declared that it can act a certain way in a given case, and not have to follow its own lead in other cases:
No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.
New Jersey Rule of Court 1:36-3 (Unpublished Opinions).
Litigants down the road may feel that they are not being given the equal protection of the law, but never mind. Res judicata and collateral estoppel are in, but stare decisis is out. Consistency and coherence are so difficult, surely it is better to be free from having from these criteria of rationality unless we decide to “opt in” by publishing opinions with our decisions. As many other scholars and commentators have noted, rules of this sort allow decisions from other states, and even other countries, to be potentially persuasive, whereas by court rule and fiat, an unpublished decision of the deciding court can not have any precedential value. Why then permit unpublished cases to be cited at all?
Having tracked decisions, published and un-, in New Jersey for many years, I am left with an impression that the Appellate Division has a tendency to refuse to publish opinions of decisions in which it has reversed the trial court’s refusal to exclude expert witness testimony, or in which it has affirmed the trial court’s exclusion of expert testimony. Opinions that explain the affirmance of a denial of expert witness exclusion or the reversal of a trial court’s grant of exclusion appear to be published more often. Stated as a four-fold table:
| Trial Court Permits Expert | Trial Court Bars Expert | |
| Appellate Court Affirms | Published | Not Published |
| Appellate Court Reverses | Not Published | Publish |
My impression is that there is an institutional bias against creating a body of law that illuminates the criteria for admission and for exclusion of expert witness opinion testimony. This is only an impression, and I do not have statistics, descriptive or inferential on these judicial behaviors. From a jurisprudential perspective, the affirmance of an exclusion below, or the reversal of a denial of exclusion below, should be at least as important as publishing the reversal of an exclusion below. The goal of announcing to the Bar and to trial judges the criteria for inclusion and exclusion would seem to suggest greater publication of the opinions, from the two unpublished cells, in the contingency table, above.
No citation and no precedent rules are deeply problematic, and have attracted a great deal of scholarly attention. See Erica Weisgerber, “Unpublished Opinions: A Convenient Means to an Unconstitutional End,” 97 Georgetown L.J. 621 (2009); Rafi Moghadam, “Judge Nullification: A Perception of Unpublished Opinions,” 62 Hastings L.J. 1397 (2011); Norman R. Williams, “The failings of Originalism: The Federal Courts and the Power of Precedent,” 37 U.C.. Davis L. Rev. 761 (2004); Dione C. Greene, “The Federal Courts of Appeals, Unpublished Decisions, and the ‘No-Citation Rule,” 81 Indiana L.J. 1503 (2006); Vincent M. Cox, “Freeing Unpublished Opinions from Exile: Going Beyond the Citation Permitted by Proposed Federal Rule of Appellate Procedure 32.1,” 44 Washburn L.J. 105 (2004); Sarah E. Ricks, “The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of The Substantive Due Process State-Created Danger Doctrine in One Circuit,” 81 Wash. L.Rev. 217 (2006); Michael J. Woodruff, “State Supreme Court Opinion Publication in the Context of Ideology and Electoral Incentives.” New York University Department of Politics (March 2011); Michael B. W. Sinclair, “Anastasoff versus Hart: The Constitutionality and Wisdom of Denying Precedential Authority to Circuit Court Decisions.” See generally The Committee for the Rule of Law (website) (collecting scholarship and news on the issue of unpublished and supposedly non-precedential opinions).
What would be useful is an empirical analysis of the New Jersey Appellate Division’s judicial behavior in deciding whether or not to publish decisions for each of the four cells, in the four-fold table, above. If my impression is correct, the suggestion of institutional bias would give further support to the abandonment of N.J. Rule of Court 1:36-3.
