The
American legal system is based in part on the English system. Originally, three European powers colonized North America. The Spanish in Florida, the French in Louisiana and beyond, and the English on the east coast. The cultural impact and history are still apparent in some ways. But as the United States government became a reality, it did so in the original English colonies of the north east.
The legal system therefore logically includes similarities to the English common law system. Certainly, Louisiana retains its reverence for the "code" or "civil" law system that was part of Roman lore and came to be the norm in both Spain and France. But common law from England is a major component of our system. It calls upon us to respect prior decisions, to follow precedent. The legal maxim is stare decisis, latin for "to stand by things decided."
Common law is decisional law, rendered by judges. The decision in a case today is expected to be similar to decisions in similar cases that have already been litigated and decided. Lawyers and litigants research the results in prior cases and provide those decisions/cases to the judge in today's case, in an effort to persuade today's judge to decide today's case similarly.
To this end, cases decided by appellate courts are published in "reporters," and each state has an official case reporter. Some are state specific, but publishers have also established what are called "regional reporters," and thereafter some states adopted particular regional reporters as the state's official reporter. Florida's official reporter is the Southern Reporter. Litigants and lawyers preparing a case for trial look for previous Florida decisions in the Southern Reporter, currently in its third edition.
An article published last December made me think of this foundational element of our legal system again. WorkCompCentral reported that The Pennsylvania Commonwealth Court, that state's appellate court, decided "to publish a ruling it had issued in September." In September, the Court decided Protz v. Workers' Compensation Appeals Board (Derry Area School District).
Protz is seen by some in the world of workers' compensation as a case of little interest, affecting merely Pennsylvania, and interpreting statutory language adopted by few states. In other words, some see little reason to study Protz.
The court in Protz declared that Pennsylvannia's statute compelling the use of the "most current" edition of the AMA Guides is unconstitutional. The adoption of such a standard by government appears to remain appropriate, but the "most current" did more than adopt existing standards, it adopted standards as yet not written. The court concluded that adopting some future iteration was instead delegation of state authority, and inappropriate. The Protz analysis is interesting, and has already been discussed in significant detail.
The December decision to publish another analysis is also of interest, and tangentially related to Protz. Courts decide which of their decisions to "publish." In a world of printing presses (think typesetting and mechanical processes) and books, that decisional authority had some logic. Paper was expensive, time to print books was expensive, and publication required resources. Before the Age of the Internet, only the parties to a case would have direct access to the court's decision in a case, unless the court decided to publish the decision.
Like much else in our lives, the Internet had a major impact on this. Today we certainly take the Internet for granted. We are all attuned to carrying around boundless volumes of information in our smart phones. But that has existed for most of us for only about twenty years, and there remain many among us who are uncomfortable with this technology even today.
At about the same time it decided Protz, the Pennsylvania court decided Winchilla v. Workers' Compensation Appeal Board (Nexstar Broadcasting). The issue in Winchilla was similar. Protz was published (and so use able as precedent in future cases), but the Winchilla decision was not designated at that time for publication.
This distinction, since both decisions were public knowledge, available on the Internet, is difficult to reconcile. But the effect was that Winchilla was not precedent. Although the court rendered that opinion, because it was not designated for publication, the workers' compensation judges, and other courts, in Pennsylvania were not compelled to follow the Winchilla decision. It was not precedent.
And thus, the long introduction regarding the importance of precedent, from our roots in English common law should become more clear. Finally, in December, the court removed the distinction, belatedly designating Winchilla for publication.
Winchilla now answers the question for Pennsylvanians "what about the claimants who hadn't previously (before Protz) challenged the use of the fifth- or
sixth-edition guides at their independent rating examinations?" When Protz was published, describing the unconstitutional delegation, Mr. Protz' impairment was thus ordered pursuant to the Fourth Edition Guides.
But, by that time in 2015, many Pennsylvania injured workers had been previously evaluated using the later Fifth or Sixth Editions, without challenging the law that purportedly so required. What about them? If it is improper to use the later editions for Mr. Protz, what about for those other injured workers? Essentially, Winchilla says that those who did not challenge the use of the "latest edition" in their cases are stuck with the impairment evaluations that they received under other editions, which each failed to challenge.
Whether the Pennsylvania Supreme Court takes up the AMA Guide question or not remains to be seen. If it does take up the constitutionality declaration of Protz, it may or may not also take up the related constraint of Winchilla. Indeed, there will be much to watch. The potential of "latest" language could impact state reliance on a broader context of delegation such as Medicare fee schedule reliance, treatment guidelines, medical formularies and more. Those who conclude Protz is of little interest to the rest of us seem to miss these broader potential impacts.
But the point today is not the substance of the analyses and questions in Protz or Winchilla. The point today is why, in the Age of the Internet, do courts continue to make distinctions about what is and is not "published?" That is, the distinction of what is and is not useful as authority for future cases?
There are a multitude of websites that provide free, widespread, public, access to court decisions. Certainly, attorneys may appreciate the distinction between a case that is "published" (binding authority in PA) and a case that is not "published" (persuasive authority in PA). But do members of the public appreciate this distinction in Pennsylvania or elsewhere? Is the distinction in this context misleading to the public? An argument may certainly be made that this distinction is not in the public interest in that regard.
In a broader context, however, what is the point of this distinction in the modern world? If a court makes a decision today, in what way is it logical for that decision to not be of precedential value in all similar or identical future cases? Why should today's decisions be relitigated and redecided again and again? What need or interest is served by the existence of appellate decisions that do not have precedential authority or value?
Pennsylvania is not alone. There are jurisdictions in which unpublished decisions may not even be used for "persuasive" authority. That means that although questions have been through the long and expensive process of litigation and appellate review, and answered, others must nonetheless relitigate them anew.
That publication decision means that adjudicators and courts are free to reach new and inconsistent decisions regarding similar or identical questions and issues. Each new day and each new case can bring a new and unique decision from a court in this context. The existence of prior inconsistent decisions is shrouded in the anonymity of their lack of precedential value, based on a court's decision not to "publish" them.
With the decision regarding publication or non-publication, the legal system dishonors these decisions, relegating them to obscurity at best. The decisions control the outcome of one particular case in which they are reached, but leave other parties to later relitigate and reargue those issues again in future cases. The publication decision distinction erodes the very value of stare decisis and predictability, which are the foundation of the common law.
When a court decides a case, that court should stand behind that decision. That interpretation of law should provide predictability and consistency for those who later litigate the same or similar issues. The artificial distinction of publication, in the Age of the Internet, has no apparent, demonstrable, benefit. It works to the disadvantage of the very people America's court systems are here to serve. It encourages relitigation. It is needlessly expensive. And, it dishonors the common law tradition of our legal system.
The court in Protz declared that Pennsylvannia's statute compelling the use of the "most current" edition of the AMA Guides is unconstitutional. The adoption of such a standard by government appears to remain appropriate, but the "most current" did more than adopt existing standards, it adopted standards as yet not written. The court concluded that adopting some future iteration was instead delegation of state authority, and inappropriate. The Protz analysis is interesting, and has already been discussed in significant detail.
This distinction, since both decisions were public knowledge, available on the Internet, is difficult to reconcile. But the effect was that Winchilla was not precedent. Although the court rendered that opinion, because it was not designated for publication, the workers' compensation judges, and other courts, in Pennsylvania were not compelled to follow the Winchilla decision. It was not precedent.
But, by that time in 2015, many Pennsylvania injured workers had been previously evaluated using the later Fifth or Sixth Editions, without challenging the law that purportedly so required. What about them? If it is improper to use the later editions for Mr. Protz, what about for those other injured workers? Essentially, Winchilla says that those who did not challenge the use of the "latest edition" in their cases are stuck with the impairment evaluations that they received under other editions, which each failed to challenge.
There are a multitude of websites that provide free, widespread, public, access to court decisions. Certainly, attorneys may appreciate the distinction between a case that is "published" (binding authority in PA) and a case that is not "published" (persuasive authority in PA). But do members of the public appreciate this distinction in Pennsylvania or elsewhere? Is the distinction in this context misleading to the public? An argument may certainly be made that this distinction is not in the public interest in that regard.
That publication decision means that adjudicators and courts are free to reach new and inconsistent decisions regarding similar or identical questions and issues. Each new day and each new case can bring a new and unique decision from a court in this context. The existence of prior inconsistent decisions is shrouded in the anonymity of their lack of precedential value, based on a court's decision not to "publish" them.
With the decision regarding publication or non-publication, the legal system dishonors these decisions, relegating them to obscurity at best. The decisions control the outcome of one particular case in which they are reached, but leave other parties to later relitigate and reargue those issues again in future cases. The publication decision distinction erodes the very value of stare decisis and predictability, which are the foundation of the common law.
When a court decides a case, that court should stand behind that decision. That interpretation of law should provide predictability and consistency for those who later litigate the same or similar issues. The artificial distinction of publication, in the Age of the Internet, has no apparent, demonstrable, benefit. It works to the disadvantage of the very people America's court systems are here to serve. It encourages relitigation. It is needlessly expensive. And, it dishonors the common law tradition of our legal system.
