Judicial Decisions Should Only be Unpublished When No Reasonable Judge Could Disagree

After the Seventh Circuit issued its opinion in Swanson v. Bank of America, N.A. (08-3322), a panel of the Ninth Circuit reached the opposite conclusion in McCoy v. Chase Manhattan Bank, USA, N.A., -- F. 3d --, 06-56278, 2009 U.S. App. LEXIS 5380 (9th Cir. Mar. 16, 2009). On that basis the appellant moved for rehearing. In denying the request for rehearing, Chief Judge Easterbrook stated that the Ninth Circuit's decision conflicted with a prior Ninth Circuit panel decision (see Evans v. Chase Bank USA, N.A., 06-15212, 267 Fed. App’x 692 (9th Cir. 2008) and the Judges of the Seventh Circuit will not get involved in a conflict within the Ninth Circuit.

And the reason this is discussed on this blog: Chief Judge Easterbrook reminds us that judicial decisions should only be unpublished/nonprecedential if no reasonable judge could disagree on the outcome. He stated (emphasis mine):

True, Evans is a nonprecedential decision, see Fed. R. App. P. 32.1, and therefore did not bind the panel in McCoy. But nonprecedential decisions should be used only when the legal issue is clear enough that all reasonable judges will come out the same way. The panel in Evans must think that the result of the panel in McCoy is unreasonable. What’s more, there was a persuasive dissent in McCoy written, as it happens, by a judge of this circuit sitting by designation. McCoy, 2009 U.S. App. LEXIS 5380 at *25–*46 (Cudahy, J., dissenting). If there is a conflict in need of resolution, it is among judges of the ninth circuit rather than between the seventh and the ninth.