What Does “Unpublished” Mean in the Electronic Era?

The E-Government Act of 2002 requires publication of all opinions. Federal Rule of Appellate Procedure 32.1 allows appellate opinions issued since its adoption to be cited. Yet opinions, district and appellate, continue to be issued bearing the label “unpublished.” Literally false, what does that mean? One District Judge’s meaning, from J.P. Morgan Trust Co., N.A. v. White Springs Agricultural Chemicals, Inc., 2008 U.S. Dist. LEXIS 21250 (M.D. Fla. March 12, 2008), footnote 1: “Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it is intended to decide the matter addressed herein and is not intended for official publication or to serve as precedent.” Can a judge, or panel of judges, simply declare that an opinion has no stare decisis impact? (Remember the 8th Circuit’s withdrawn opinion that ultimately led to FRAP 32.1.) Since a District Court opinion is not binding on other District Judges, what does it mean that the author labels it non-precedential? That it should be ignored? Even if presented with essentially the same set of facts?

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