Unpublished appellate judicial opinions present formidable challenges for modern legal researchers, from both practical and ethical points of view. The practice of selective publication of court opinions, and attendant court rules that restrict citation of unpublished opinions, have long been the subject of debate within legal profession. The recent case of Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot 235 F.3d 1054 (8th Cir. 2000), has rekindled this debate, giving it a new constitutional dimension, and placing it squarely within the context of judicial accountability and the appropriate separation of powers among our branches of government. This case has become the subject of extensive analysis in subsequent cases and commentaries. Much of the commentary on Anastasoff neglects the practical realities of modern legal research, and pays little heed to precepts of information policy. The author attempts to elucidate the difficulties that unpublished opinions present to the ethical researcher, and goes on to argue that while reform of the no-publish, no-cite rules is imperative, such reform must be informed by information policy considerations.
46 New York Law School Law Review 429-446 (2002-2003).