Block on Trump's Asylum Ban Upheld by Supreme Court
Hey, we all do it, right? We reuse old legal documents to save time and money, typically clients' money. And once in a while, you'll forget to change a name or a gender-based pronoun somewhere around page 12. It happens.
But this goes a bit further than that: The Second Circuit has been copying and pasting what is arguably a misstatement of an immigration standard -- social visibility -- in a long series of unpublished opinions. After a law professor pointed this out in 2012, the court stopped. But recently, someone taking the copy-and-paste shortcut brought the snippet back from the grave, using it in three more cases this year.
A Misstatement of a Circuit-Splitting Standard
Prof. Brian Soucek of the University of California at Davis first pointed out the problem in an academic paper in 2012. He used the Second Circuit's misstatements as an example of what he calls "copy-paste precedent."
How serious was the slip-up? He noted that the opinions misstated the circuit's binding precedent on the meaning of "social visibility" in asylum law, the subject of a deepening circuit split and an en banc opinion in the Ninth Circuit.
As The Wall Street Journal's Law Blog explains, one can obtain asylum by showing a well-founded fear of persecution for being in a "particular social group." The Board of Immigration Appeals has clarified this by stating that one of the relevant factors is how the society encompassing the proposed group views it.
In the "copy-paste precedent" series of unpublished opinions, the standard is stated as a proposed group must "exhibit a shared characteristic that is socially visible to others in the community," a more literal standard that the Second Circuit has actually rejected.
"If you're applying for asylum in the Second Circuit, you're more likely to have the incorrect standard applied as opposed to the correct standard," Prof. Soucek told the WSJ, as published opinions are rarer than unpublished ones.
A Whole Lot of Questions
The "copy-paste precedent" problem begs a lot of questions.
Prof. Soucek notes that he only looked at a single area of law in a single circuit -- who knows how often this happens, especially since nobody reads unpublished opinions except (a) the parties, (b) when a celebrity is involved, or (c) someone is doing a research study.
And what's the solution, besides I don't know, not copying bad precedent in the first place? Double-check everything, perhaps? Courts probably should be checking their copied-and-pasted sources, especially when relying on copies of old, unpublished orders which are non-precedential and apparently not exactly accurate statements of law. And they really should be doing so after someone already pointed out their mistake.
But don't expect copy-and-paste to go away any time soon. Seriously, how often do you use it? It's a necessity of modern life, just as computers themselves are.