The justification for limited publication rest on three premises:
First, there is no need to publish all opinions.
Second, full publication is costly.
Third, judges can effectively determine when an opinion needs to be
published.
In truth, all decisions make law, or at least contribute to the
process, for each shows how courts actually resolve disputes.
Even cumulative opinions have value. They can suggest how firm a line
of precedent may be, or indicate problems in the application of
articulated precedent, or even show the convergence of a rule from the
expectations of those to whom it is addressed. Thus, value can be in
found publishing any opinion.
The premature decision not to publish entails significant costs: the
actual writing of an opinion helps judges develop their thoughts on the
topic. If an opinion in support of a decision simply "will not
write," the conscientious judge may be forced to reconsider his
initial decision.
The discipline of providing written reasons in an opinion often
reveals weaknesses or inconsistencies in the intended decision that may
compel a change in the rationale or even in the ultimate result.
Even if judges conscientiously reach correct results, an opinion that
does not disclosed its reasoning is unsatisfactory. Justice must not
only be done, it must appear to be done.
Early decisions not to publish force the court to predict, early in
the judicial process, that its opinion "will not make law."
But this prediction process is by no means perfect.
Limited publication reduces judicial responsibility by removing the
constraints that stare decisis places upon the court.
Limiting publication does not necessarily limit the propagation of
error.
Cases that contain a dissent or concurrences are, by definition,
controversial; the court disagrees either about the result to be reached
or about the method used to reach it. Decisions with separate opinions,
by definition, should be published.
Similarly, separate opinions also perform an important corrective
function, for they criticize the result and reasoning of the majority,
appealing for correction by a higher court, a future court, or the
legislature. This too merits publication.
Reversals in routine cases also reflect a continuing battle over the
correct legal standard to apply. The refusal to publish reversals thus
deprives the judiciary of clarifications of precedent and instructions
as to interpretation.
In truth, reversals are quite likely to create law. If they are not
published, they run the likelihood of creating a suppressed precedent.
Judicial responsibility also may be diminished when courts use the
non-publication list as a repository for troublesome cases presenting
issues the court does not wish to address in public.
Existing data provide no support for the hypothesis that limiting
publication enhances judicial productivity.
The putative benefits of swift or justice and savings of judicial
effort that are often cited to justify non-publication in fact produce
suppression of precedent and diminished quality.