Like the millions of unnamed species, the unpublished case law is out there...
Through the Endangered Species Act, Congress empowered citizens to act as private attorney generals, and to bring suits against the government. For better, or for worse, this policy decision has turned the federal judiciary into a critical area of concern for watchers of endangered species. Sadly, much of the efforts of the judiciary go wholly unnoticed -- or at a minimum, hard to find -- because the work of the judiciary is not necessarily made part of the public domain.
While lawyers and laypeople are generally familiar with the formal looking thick volumes of books with judicial decisions, such as the West Federal Reporters, the fact is that dozens, and even hundreds, of judicial decisions are issued by the courts without ever reaching these volumes. Some of them make it into the online publication forums, such as Lexis or Westlaw. Some cases are available online, through the federal PACER system, for a fee. Some get reported in the mainstream media or just the local news, and still others don't even get that much attention, because of the complexity of the facts and indifference for some species.
Equally frustratingly, many judicial rulings are issued with a "not for publication" disclaimer. While the United States Supreme Court has finally banned the practice of wholly prohibiting "unpublished" decisions from being cited in the courts, these decisions still receive "less" precedential value (and less access) than others -- a stunning concession by the judicial branch, and perhaps one that suggests that some citizens receive less, or different, due process than others. In fact, according to one study of this subject, political considerations gain more attention in published cases: "Results indicate that the effects of ideological preferences are different in published and unpublished opinions issued by appellate judges; judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions." See, Ideological Effects in Published Versus Unpublished Judicial Opinions, from AllAcademic.com
Through this website, www.ESAblawg.com attempts to track the implementation of the Endangered Species Act, including the ever evolving case law. However, for all the reasons above, a complete listing of every case is impossible. So just know this, just as there are millions of species roaming this earth that have never been identified, so too are there hundreds or thousands of cases none of us have ever heard of.
- Penelope Pether, "Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts," 56 Stan. L. Rev. 1435 (May 2004), available online.
- A Librarian's Guide to Unpublished Judicial Decisions, from the Law Library Journal
Photo of the "octosquid," described by wikipedia as "a new species of the genus Mastigoteuthis which was discovered at a depth of 3000 feet off the Hawaiian Islands in the summer of 2007." Photo from Hawaii's Star-Bulletin.