To publish?

A fiery dissent (literally fiery, as it warns that “the Good Ship Fifth Circuit is afire”) in Sambrano v. United Airlines faults the majority for, among other matters, not publishing the opinion. No. 21-11159 (Feb. 17, 2022). The opinions’ review of Fifth Circuit Local Rule 47.5.4 echoes a long-running debate, throughout all appellate courts, about the benefits and detriments of having multiple tiers of judicial precedent.

Texas practitioners will recall similar debate leading up to the adoption of Tex. R. App. P. 47.4, the “memorandum opinion” rule. They will also likely see similarities between this strongly worded dissent and the concurrence in Steward Health Care System v. Saidara from the Dallas Court of Appeals in 2021, which also examined the policy judgments embodied in a different set of appellate-procedure rules.