From the abstract for Elizabeth Earle Beske’s Rethinking the Nonprecedential Opinion, UCLA Law Review, Vol. 65, 2018:
Nearly 90 percent of the opinions issued by the federal courts of appeal are unpublished and lack precedential effect, and where these cases lay out new legal rules, this phenomenon cannot be reconciled with the Supreme Court’s settled retroactivity jurisprudence. Harper v. Virginia Board of Taxation and Griffith v. Kentucky, both moored in Article III, require that any case’s new rule apply not only to future litigants but also to those whose cases are pending. A nonprecedential case by definition has no application beyond its litigants. This raises no problem where a case adds nothing new, as other litigants already have access to the precedents on which it relies. However, the majority of circuits allow nonprecedential opinions to break new ground, and these nonprecedential opinions frequently make law, command dissents, create or deepen circuit splits, and go up on certiorari to the Supreme Court.
Many commentators have debated the practical and legal implications of nonprecedential opinions, but this Article is the first to identify the inconsistency between groundbreaking nonprecedential opinions and settled principles of adjudicative retroactivity. This Article concludes that permitting nonprecedential opinions as an exception to adjudicative retroactivity threatens to drain Harper and Griffith of all but symbolic significance. Although a handful of circuits have guidelines for when an opinion must have precedential effect, this Article proposes use of the “new rule” construct, already familiar and well-developed in the context of habeas corpus and official immunity, as a mechanism for differentiating those opinions that may be designated nonprecedential from those that—under settled doctrine—may not.