Courts first issue decisions in individual pamphlets known as slip opinions. Slip opinions are not copyrighted and may be re-published in a variety of sources (such as electronic databases and loose-leaf services). Issuance of a case decision in slip opinion format does not constitute publication.
All opinions issued by the U.S. Supreme Court are published. However, this is not true of all lower federal courts decisions. Each circuit establishes criteria for publication of appellate opinions as well as criteria indicating whether unpublished decisions may be cited and what precedential value should be accorded them. Generally, publication criteria are found in each circuit’s rules of court. Approximately 35% of Court of Appeals decisions and 20% of U.S. District Court decisions are published. Unpublished cases can sometimes be located on LexisNexis, Westlaw, West’s Federal Appendix or in topical loose-leaf services. Even when published, U.S. District Court cases are not considered precedential, but merely persuasive (though, of course, binding on the parties to the case).
Unlike in California, where a grant of rehearing automatically vacates the lower court opinion (see the guide Depublication of California Court of Appeal Decisions), lower federal court opinions are not automatically vacated when reviewed by a higher court. Until the higher court renders a decision, the lower court opinion remains in effect unless the higher court specifically orders the lower court decision vacated. However, the subsequent history of a case should be included when citing to the lower court decision as authority. Subsequent history information is noted in Shepard’s and KeyCite.