What’s published, unpublished and precedential?

Recently CAAFLog had a discussion about military appellate cases and publication or non-publication.

PACER is a pay to use system that allows access to lots of federal courts documents that are “publically available” but at a fee.

Recently a technology blogger I follow FutureLawyer had a comment about RECAP and PACER.

Now here is another interesting discussion on Concurring Opinions about what is or isn’t published, and it too relates to RECAP and PACER.

Today I read that a judge has vacated “legally significant” opinions in a tort case involving trains, high voltage wires, and teens. The case went to 3rd Circuit and was remanded. The District Court Judge vacated the opinions and directed Westlaw and Lexis/Nexis to remove them from their databases. One troubling matter is that it appears the motion to seal is not available. In addition, the decision to vacate the decisions and remove them appears to have been part of a confidential settlement agreement. I am not sure what the rules are for withdrawing a published opinion. There are probably good ones and good procedures for such a move. Then again it may be part of judge’s broad discretionary powers. Here, the way it happened has caused some concern.

At bottom we are seeing a shift or a refinement in the development of the law influenced not so much from the opinion itself but because of greater access to what is being written.  Perhaps the real issue is coming to a system to decide what is reliable and what is not.   What is reliable can be followed.

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