Wednesday, August 29, 2012

Nonprecedential / Unpublished Appellate Decisions Morphing Into Precedent? (8/29/12)

The Circuit Splits Blog, here, has a new entry titled Copy-and-Paste: the Role of Judicial Clerks in Shaping Precedent (8/29/12), here.  The blog summarizes and points to an article in SSRN:  Soucek, Brian, Copy-Paste Precedent (July 19, 2012), here.  The concept is that nonprecedential decisions can morph into precedents through the stealth of the cut and paste world we live in.  Judicial clerks know how to cut and paste as well.  What are supposed to be nonprecedential decisions become precedent through the ease (and sloppiness) of cutting and pasting.  (I confess that I do a lot of cutting and pasting, so perhaps my blog entry here is an indictment of myself -- cutting and pasting can be quite sloppy.)

This is a stretch, but it can become like the phenomenon observed by many, including Lenin and Goebbels, that a lie told often enough becomes the truth.  See "Proof by assertion" (Wikipedia, accessed August 30, 2012), here. I am not saying that nonprecedential decisions are lies, so the analogy is hyperbole.  Perhaps the better analogy would be sloppy thinking (encouraged by the notion that nobody is listening or will care) if repeated often enough becomes the truth.  The point of the article is that that which was deliberately intended to be nonprecedential can morph without critical thought into the precedential.  Read the cited article.

This discussion is particularly appropriate for the Williams case where the Fourth Circuit recently overturned a trial court holding rejecting the FBAR willfulness penalty.  See Fourth Circuit Reverses Williams on Willfulness (7/20/12; revised 7/24/12), here.  (See also Tax Crimes Student Review and Exercise (2/29/09), here, for a related discussion of nonprecedential decisions.)

With respect to Williams in particular, the bar is much in arms about the direction it perceives is being pointed by the majority opinion in Williams.  The Fourth Circuit itself said that the Williams decision was nonprecedential.  I would think we could take the court at its word.  But, this new article perhaps should give us some concern and may fan the fears of many that the majority "nonprecedential" decision in Williams is heading other panels and other courts in the wrong direction.

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