'Unpublished' Opinions in Tennessee - Articles

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Posted by: Taylor Berger on Jun 17, 2010

Journal Issue Date: Jul 2010

Journal Name: July 2010 - Vol. 46, No. 7

What Are They and What Should They Be Worth?

Run an online search for Tennessee case law on virtually any statute or legal topic and most of the results " and oftentimes the most relevant ones " will be unpublished cases of undetermined precedential value. Is it worth your time to read them? To cite them? To rely on them? The answer, not surprisingly, is that it depends. This article aims to clarify the complicated rules that govern what constitutes controlling precedent in Tennessee, and suggests an alternative approach that would simplify the system and make it fairer to litigants.

Background and History

Written reporting of American judicial decisions dates back to the late 18th century, when Alexander James Dallas and Ephraim Kirby began publishing limited reports of court decisions in Pennsylvania, Delaware, and Connecticut.[1] Because early publishers often based their reports on second-hand sources or notes of orally issued decisions, their reports were interpretive and incomplete.[2] Jurisdictions began authorizing official versions of the reports and requiring judges to issue written decisions as early as 1803.[3] By the end of the 19th century, West Company had standardized the reporting process into a comprehensive style in which the company integrated the issues of every opinion into its Key Number System and published virtually every appellate decision in the relevant state or regional volume.[4]

In response to the ever-increasing volume of published case law, the 1964 Judicial Conference of the United States recommended that federal courts authorize "the publication of only those opinions which are of general precedential value."[5] In 1973, the Advisory Council for Appellate Justice of the Federal Judicial Center issued an extensive report recommending that courts adopt publication rules to reduce the number of published appellate opinions.[6]

The report proposed that an opinion only be published if it: (1) "lays down a new rule of law, or alters or modifies an existing rule"; (2) "involves a legal issue of continuing public interest," as opposed to "general public interest ... of a fleeting nature"; (3) "criticizes existing law," especially when it calls for change by a higher court or the legislature; or (4) resolves a conflict of authority and "rationaliz[es] apparent divergencies in the way an existing rule has been applied."[7]

Following the 1973 report, Tennessee was among the many jurisdictions that adopted some form of the Council's recommendations.[8] Supreme Court Rule 4 tracks the recommendations of the report; a Tennessee intermediate appellate court decision may be published in accordance with the intermediate appellate court rules if:

(i) the opinion establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a set of facts significantly different from those stated in other published opinions;
(ii) the opinion involves a legal issue of continuing public interest;
(iii) the opinion criticizes, with reasons given, an existing rule of law;
(iv) the opinion resolves an apparent conflict of authority, whether or not the earlier opinion or opinions are published;
(v) the opinion updates, clarifies or distinguishes a principle of law; or
(vi) the opinion makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.[9]

The 1973 report also recommended that courts limit the citation of unpublished opinions as precedent.[10] The report stated that allowing citation of unpublished opinions would give litigants with knowledge of those opinions an unfair advantage over those who lacked such knowledge or access.[11] These rules limiting the citation and precedential value of unpublished opinions have become especially important with the advent of online legal databases. Now that virtually every opinion " whether "published" or not " is available online, unequal access to "unpublished" decisions is not the problem it once was. Yet the rules limiting the citation and precedential value of "unpublished" opinions remain.

Today, unpublished opinions are simply those that do not appear in the Southwestern Reports. Consequently, the terms "published" and "reported," and "unpublished" and "unreported," have become synonymous. The distinction between reported and unreported decisions is almost entirely unrelated to the availability of the opinion. Rather, the categorization depends on the jurisdiction's particular rules for identifying decisions as one or the other. Those rules vary widely.[12]

Additional rules limiting the citation and precedential value of unpublished opinions have magnified the consequences of the publication rules.

Tennessee Precedent

Tennessee courts have generally expressed the sentiment that while unpublished opinions should not be considered controlling authority, they are entitled to "respect," at least in regard to the persuasiveness of their reasoning.[13] In Allstate Ins. Co. v. Watts, the Tennessee Supreme Court, citing a "persuasive" Court of Appeals opinion, noted the general rule that courts should not cite unpublished opinions in published opinions.[14] Justice Henry, in a dissent, lamented that "many outstanding opinions of our intermediate appellate courts are consigned to oblivion and much scholarly research is lost to the profession" because of the rule.[15] Despite this loss to scholarship, the courts have made clear that published decisions generally carry the day when it comes to conflicting authority.[16]

While the case law appears to offer some degree of certainty to the problem of unpublished opinions, the Tennessee Court Rules succeed in obfuscating that clarity. The Rules establish at least six levels of precedential weight.[17] Generally, the order of authority is as follows:

  1. Published Supreme Court opinion
    1. Controlling authority until reversed or modified by another Supreme Court opinion. Sup.Ct.R. 4(G)(2).
  2. Published Court of Appeals or Court of Criminal Appeals opinion
    1. Controlling authority until reversed or modified by a Supreme Court opinion or another Court of Appeals opinion. Sup.Ct.R. 4(G)(2).
  3. Unpublished Supreme Court opinion[28]
    1. Persuasive authority, but controlling between parties to the case. Sup.Ct.R. 4(G)(1).
    2. Entitled to "at least the same respect" as an unpublished Court of Appeals opinion. McConnel v. State, 12 S.W.3d 795, n.5 at 799 (Tenn. 2000).
  4. Unpublished Court of Appeals or Court of Criminal Appeals opinion
    1. Generally, persuasive authority, but controlling between parties to the case. Sup.Ct.R. 4(G)(1).
    2. But controlling authority if opinion "reverses or modifies" another Court of Appeals opinion. Sup.Ct.R. 4(G)(2).
  5. Court of Appeals or Court of Criminal Appeals opinion designated "Not for Citation" by Supreme Court
    1. No precedential value. Sup.Ct.R. 4(E)(1).
  6. Court of Appeals or Court of Criminal Appeals opinion designated "Memorandum Opinion" by intermediate appellate court
    1. Cannot be cited or relied on for any reason in unrelated case. Ct.App.R. 10; Crim.App.R. 20.[19]

To Publish or Not to Publish

Given the importance of whether a particular intermediate appellate decision is published, the question follows, how is it decided which ones are selected for publication? It depends, ostensibly at least, on whether the decision meets the substantive criteria of Supreme Court Rule 4(D). In reality, it may depend more on two things largely unrelated to the substance of the opinion: whether the losing litigant seeks permission to appeal the decision and whether the judge who wrote the opinion decides to comply with the procedure for having the opinion published.

If the losing litigant at the intermediate appellate court level does not seek permission to appeal the decision to the Supreme Court, whether the opinion will be published depends on several factors. First, the appellate court can strip the decision of all precedential weight by designating it a "Memorandum Opinion," in which case the opinion cannot be cited or relied on by any unrelated party.[20] If the opinion is not designated a "Memorandum Opinion," and the opinion meets the substantive criteria set forth in the court rules,[21] the authoring judge may seek to have the opinion published by following the procedure outlined in Court of Appeals Rule 11(c) and Court of Criminal Appeals Rule 19.2.[22] Under these rules, the judge must circulate the opinion, along with reasons why he or she feels publication is appropriate, to all members of the appellate court. If a majority of the court does not  submit a written objection within 30 days, the opinion will be published.

The publication process is different if the losing litigant at the intermediate appellate court level seeks permission to appeal to the Supreme Court. If the Supreme Court accepts the case, the lower court opinion won't be published.[23] If the Supreme Court denies permission to appeal and does not designate the opinion "Not for Citation," the Supreme Court rules say the opinion may be published "in accordance with the rules of the intermediate appellate court."[24] This does not mean in accordance with Court of Appeals Rule 11(c) and Court of Criminal Appeals Rule 19.2. Instead, the rules that Supreme Court Rule 4(D) is referring to are unpublished and unavailable to the public. According to several past and sitting Court of Appeals judges, if the Supreme Court denies permission to appeal, the opinion will be published if the authoring judge sends it to the Attorney General for publication " no circulation or justification needed.

Considering that whether an intermediate appellate court decision is published has a serious impact on how much precedential weight the opinion will carry, one would hope that the rules governing which decisions are published would ensure a consistent and rational approach. Upon examination, however, such arbitrary matters as whether a litigant appeals, the workload of the courts, and even the mood or whim of an individual judge on a given day, may play a greater role in whether an opinion is published than any substantive consideration. Perhaps it is too much to ask of judges who already have their hands full deciding the relentless stream of cases before them, to reach not only the proper result in a particular controversy, but to then go back and assess how much precedential weight should be afforded the decision.

Unpublished, but Controlling?

Supreme Court Rule 4 has undergone some changes over the past few years, as the Supreme Court has patched together a system of rules aimed at creating a more efficient and consistent approach to appellate precedence. For example, an earlier version of Rule 4 allowed for the publishing of an intermediate appellate court decision at the direction of the Supreme Court. In at least one instance, the Court of Appeals issued an opinion asserting that one of its own opinions published under the rule ("at the express direction of the Supreme Court") controlled in spite of an earlier contrary Supreme Court decision.[25] The Court of Appeals saw "no way around" the fact that its own decision was published at the behest of the Supreme Court, and so it followed that the Court of Appeals decision was the new controlling law, prior Supreme Court decisions notwithstanding. This strange result " essentially that a Court of Appeals decision could overrule a Supreme Court decision " was a direct result of the confusing patchwork of precedent shades. Shortly after that decision, the Supreme Court purged section E from Rule 4, so the Court can no longer direct that an opinion issued by the Court of Appeals be published (although it can still direct that an opinion not be published through the "Not for Citation" designation of the new Rule 4(E)).

Supreme Court Rule 4(G)(2) creates an especially troublesome scenario. According to the rule, if an intermediate appellate court decision reverses or modifies an earlier opinion, the more recent opinion will be controlling authority. This is true whether or not the opinion is published, notwithstanding that 4(G)(1) clearly states that unpublished opinions are merely persuasive authority. So it appears that litigants  may rely on unpublished intermediate appellate court opinions  as controlling precedent only  when the opinion reverses or modifies a published opinion  of the court, and has not been designated "Memorandum Opinion" by the court or "Not for Citation" by the  Supreme Court or Court of Appeals. In all other instances, litigants and trial court judges should rely only on published opinions as controlling law.

But what exactly is required for an opinion to "modify" another opinion? One could certainly argue that virtually every opinion directly or indirectly modifies those it cites. Every case evolves from a unique set of facts; that is the nature of human conflict. While the job of the courts is to analogize situations to ones that have come before " and thus help ensure that justice is meted out fairly and predictably " it would seem that the body of law can only be made more whole by recognizing that subtle differences between cases matter. The upshot of this reasoning is that every court decision, implicitly at least, modifies the precedent on which it relies. In the real world, however, for an opinion to count as a "modification" sufficient to invoke Rule 4(G)(2) establishing it as controlling precedent, generally the author must explicitly state that the court is modifying or overruling prior precedent. Anything less, it would seem, is lost in the endless shuffle of case cites and rules.

Take for  example, two  rulings concerning whether an estate creditor may file a claim more than a year after the death of  the decedent. Glanton v. Lord, a published Court of Appeals opinion issued by the Middle Section, followed older unpublished decisions  to hold  that a one-year statute of limitations on claims  did not begin to run until the estate was actually probated.[26] In Estate of Luck, an unpublished opinion issued later that year, the  Western Section  of the court overruled the  older unpublished case law relied on by the court in Glanton to hold that the one-year statute of limitations on claims was absolute, and began to run from the date of the decedent's death.[27]

Clearly Luck fit the criteria for publication found in the court rules, but for one reason or another it was not published. This left practitioners and trial courts unsure of the state of the law. Under case law and Rule 4(G)(1), published opinions are controlling authority, so it would appear that as a published case, Glanton was controlling authority, at least at the trial court level. So was a trial judge bound to follow Glanton,  recognizing that  he or she would most likely be reversed should the losing litigant appeal  the decision? Under Supreme Court Rule 4(G)(2), since Luck overruled the early case law on the issue  "and its progeny," thus  indirectly modifying Glanton, it would appear that the unpublished opinion controls in spite of Glanton. Still, it is easy to see  how practitioners and trial  judges would be confused by the contrary rulings, given the court rules' emphasis on the relative  precedential heft of  published  decisions.  And perhaps of greater importance is the lack of predictability for citizens who wish to conform their actions to current legal standards.

Controversy in the Federal Courts

In the federal court system, the 2006 adoption of Federal Rule of Appellate Procedure 32.1 allowing the citation of all federal appellate decisions, was the culmination of a flurry of debate about the propriety and constitutionality of court rules forbidding the citation of unpublished decisions.[28] The debate carried over to the propriety of the related court rules designating the relative precedential weight of decisions.

Judge Alex Kozinski of the 9th Circuit led those who supported the continued ban on citation of unpublished cases, stating, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."[29] In an article written with Judge Stephen Reinhardt, Judge Kozinski stated that the large numbers of cases before judges required that they dispose of most of their cases quickly with summary opinions that should not be cited.[30] Allowing the citation of these opinions would necessitate the judges spending an inordinate amount of time on cases that do not deserve special attention.[31]

The other side of the debate held that citation of unpublished opinions was integral to the fair application of justice. Some supported Judge Richard Arnold's 8th Circuit  holding that the court was constitutionally compelled to allow the citation of its own unpublished decision.[32] In an article written prior to that decision, Judge Arnold questioned whether the assertion that unpublished opinions are not precedent violated Article III of the Constitution. If the Constitution vests courts with "judicial power," would a judge acting contrary to what was done previously without giving any reason be exercising something other than judicial power, something more akin to legislative or executive power?[33] Judge Arnold and others further asserted that a system of universal publication and citation ensures accountability in the judiciary, in that judges cannot hide decisions that are not thoughtfully reasoned or articulated by designating them not for publication.[34] The proponents of universal publication and citation also pointed out that the system would ensure transparency in that difficult decisions will not be buried as unpublished opinions.[35]

In 2006, the newly appointed Chief Justice John Roberts was responsible for the promulgation of a compromise of sorts: Federal Rule of Appellate Procedure 32.1. The rule allowed the citation of unpublished decisions, but it still allows federal appellate courts to make their own rules regarding the precedential value of those decisions. Rule 32.1 did nothing to change the  longstanding practice in many courts of  limiting the precedential  weight of unpublished opinions. These courts are still free to ignore  unpublished decisions, even if they can no longer keep the decisions out of briefs and oral argument.

A Simple Solution

The current Tennessee court rules force judges to perform two roles: the traditional judicial role of deciding cases and controversies, but also the quasi-legislative role of deciding which cases to publish and thus what law will become controlling precedent. Tennessee could abandon the complex rules that govern intermediate appellate precedent and replace them with one simple rule: an intermediate appellate decision is simply that: an intermediate appellate court's decision " nothing more and nothing less, depending on whether it was published. Its precedential value in relation to other intermediate appellate decisions would depend on when it was issued, its applicability to the given set of facts, and the persuasiveness of its legal reasoning.

If an intermediate appellate court opinion overrules a prior decision, it should be published in order to put practitioners and citizens on notice. But whether or not published, the opinion's precedential weight should be the same. The court, sitting in three sections across the state, will surely end up issuing conflicting opinions, but these opinions would be reconciled the old-fashioned way. They would stand or fall on their own merit, independent of whether the decision is appealed by a litigant or whether the  judge who penned the opinion decides it is appropriate for publication. The Supreme Court would remain the ultimate arbiter of common law; only it would no longer be able to neuter a Court of Appeals  opinion without benefit of the adversary system by designating the decision "Not for Citation." Trial court judges  and practitioners would find their roles simplified as well. No longer bound  to a system of precedent shades, lawyers could cite and rely on the most relevant cases, leaving it up  to the  trial judge to determine the more persuasive argument.

With the mass digitization and dissemination of judicial opinions, the original rationale for limiting the use of unpublished opinions " unequal access " no longer holds sway. Of the hundreds of decisions issued each year by the Tennessee Court of Appeals, almost 90 percent do not appear in the Southwestern Reporter.[36] To permit judges to reject the majority of their own decisions, declaring them nonprecedential by failing to publish them, removes accountability from the judicial process. Judges who are uneasy with the legal or factual grounds for their decisions may sweep the difficulties under the rug.[37] Moreover, empowering judges to determine which decisions will bind and which will not, gives them quasi-legislative power. Judges should decide the controversies currently before them, no more and no less.

For hundreds of years the common law system of stare decisis operated quite effectively without court rules creating categories of cases that were entitled to various levels of precedential effect. Courts deciding subsequent controversies made a determination of the weight to afford prior decisions by examining the relative authority of the rendering court and the similarity between the prior case in the current one. They were assisted by the input of adversary parties in the case before them. Adherence to precedent is not only bound up in our history and tradition, but rests on deep legal values of stability, protection of reliance, efficiency, equality, and the image of justice.[38] Why not allow this time-tested method to give shape to our body of law? Modern court rules preempting this process are unnecessary and distracting of the proper roles of courts within the common law system. Tennessee's rules in particular are troubling because arbitrary matters " such as whether a party chooses to appeal or how energetic a particular judge is in submitting decisions for publication " can determine whether a judicial decision is part of the common law or somehow outside of it.


  1. See Joyce, "The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendency," 83 Mich. L. Rev. 1291, 1295 (1985).
  2. Berring, "Legal Research and Legal Concepts: Where Form Molds Substance," 75 Cal. L. Rev. 15, 18-19.
  3. Id. at 19 (citing F. Hicks, Materials and Methods of Legal Research with Bibliographical Manual, 110, 117 (1923)).
  4. Id., at 20-21, citing Marvin, West Publishing Company: Origin, Growth, Leadership (1969); Woxland, "Forever Associated with the Practice of Law," 5 Legal Ref. Services Q. 115 (Spring 1985). For example, the first case in the Tennessee Decisions volume of the South Western Publisher is a Tennessee Supreme Court case decided in 1886. See Shelby Co. v. Mississippi & T.R. Co., 1 S.W. 32 (Tenn. 1886).
  5. 1964 Report of the Proceedings of the Judicial Conference of the United States 11.
  6. Committee on Use of Appellate Court Energies, Advisory Council for Appellate Justice, Standards for Publication of Judicial Opinions 1 (1973) (hereinafter, "Committee Publish"). Discussed in Martineau, "Restrictions on Publication and Citation of Judicial Opinions: A Reassessment," 28 U. Mich. J.L. Ref. 119, 122 (1994).
  7. Committee Publish at 15-17.
  8. Martineau, supra n.6, 125, citing Stienstra, Federal Judicial Center, Unpublished Disopositions: Problems of Access and Use in the Courts of Appeals 8-9 (1985); Williams, "Survey of State Court Opinion Writing and Publication Practices," 83 Law Libr. J. 21, 22 (1991). Every federal court of appeals and most state jurisdictions adopted some form of publication rules.
  9. Sup.Ct. R. 4(D). See also Ct.App.R. 11(b) and Crim.App.R. 19.1(a) and discussion below.
  10. Committee Publish at 18.
  11. Id.
  12. Note, "Federal and State Court Rules Governing Publication and Citation of Opinions: An Update," 6 J. App. Prac & Process 349 (2004) (cataloguing all state and federal publication rules).
  13. See In re D.Y.H., 226 S.W.3d 327, n. 3 (Tenn. 2007) (citing Tenn. S.Ct. R. 4(H)(1); McConnell v. State, 12 S.W.3d 795, 799 n. 5 (Tenn. 2000) (citing Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 886 n. 2 (Tenn. 1991)). See also State v. Franklin, 919 S.W.2d 362 (Tenn.Cr.App. 1995); Cook v. State, 506 S.W.2d 955 (Tenn.Cr.App. 1973).
  14. Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 886 n. 2 (Tenn. 1991).
  15. Id. (quoting Pairamore v. Pairamore, 547 S.W. 2d 545, 552 (Tenn. 1977), Henry dissenting).
  16. See Sup.Ct.R.4 and discussion below.
  17. In addition, Special Workers' Compensation Appeals Panels shall not be published unless publication is ordered by a majority of the Supreme Court. Sup.Ct.R. 4(A)(3)
  18. All Tennessee Supreme Court opinions are published unless explicitly designated "Not for Publication" by the Court. Sup.Ct.R.4(A)(2). A sitting Supreme Court justice told the author that this designation was exceedingly rare, but that a new Supreme Court decision discussing such opinions is to be released soon.
  19. Rule 20 of the Court of Criminal Appeals differs slightly in that it provides an exception that a Memorandum Opinion can be cited where there is a split of authority.
  20. See Ct.App.R. 10 and Crim.App.R. 20. The Court of Criminal Appeals rule differs slightly in that it does allow for citation of the opinion in an unrelated case to establish a split of authority.
  21. See Sup.Ct.R. 4(D) listed above, and Ct.App.R. 11(b) and Ct.Crim.App. R. 19.1(a), containing identical language.
  22. See Sup.Ct.R. 4(F).
  23. See Sup.Ct.R. 4(C).
  24. See Sup.Ct.R. 4(D).
  25. Keaton v. Klein, 2006 WL 2032524 (Tenn. Ct. App.). The issue was whether the trial court was within its discretion in awarding pre-judgment interest in a personal injury action. Two prior Supreme Court rulings held that the decision was within the discretion of the trial court. In Keeton, the Court of Appeals followed another published Court of Appeals decision to hold that the trial court lacked the authority to award pre-judgment interest " a ruling in direct conflict with the prior Supreme Court authority.
  26. See Glanton v. Lord, 183 S.W.3d 391 (Tenn. Ct. App. 2005).
  27. See In re Estate of Luck, No. W2004-01554-COA-R3CV, 2005 WL 1356448, (Tenn. Ct. App. Jun. 7, 2005).
  28. See Washington and Lee Law Review Fall 2005 Symposium.
  29. Tony Mauro, "Unpublished Opinions: Indedible Sausage or Crazy Uncle," Legal Times, April 12, 2004 (quoting Kozinski). See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) (holding that court rule that prohibited citation of unpublished opinions was constitutional).
  30. Kozinski and Reinhardt, "Please Don't Cite This! Why We Don't Allow Citation to Unpublished Decisions," California Lawyer 43, 44 (June 2000).
  31. Id.
  32. See Anastoff v. United States, 223 F.3d 898, 905 (8th Cir. 2000), vacated, 235 F.3d 1054 (8th Cir. 2000) (holding that rule prohibiting citation of unpublished opinions was unconstitutional because it allows judges to ignore prior decisions, thus expanding judicial power).
  33. Arnold, "Unpublished Opinions: A Comment", 1 J. App. Prac. & Process 219, 226 (1999).
  34. Schiavoni, "Who's Afraid of Precedent?: The Debate Over the Precedential Value of Unpublished Opinions," 49 UCLA L. Rev. 1859, 1882-1885 (2002). See also Allen, "The Right to Cite: Why Fair and Accountable Courts Should Abandon the No-Citation Rules," Brennan Center for Justice at NYU School of Law, www.brennancenter.org.
  35. Schiavoni, at 1884.
  36.   Year Total   Unpublished* Published**   % Published
    2008 1673 1544 129 7.7%
    2007 1667 1502 165 9.9%
    2006 1769 1587 182 10.3%
    2005 2047 1870 177 8.6%
    2004 1840 1658 182 9.9%
    2003 1859 1671 188 10.1%
    2002 1790 1624 166 9.37%
    2001 1977 1761 216 10.9%
    2000 1867 1658 209 11.2%
    Average: 1832 1653 179   9.8%
    ** Court of Appeals & "S.E.3D" & da(aft 1/1/2009 & bef 12/31/2009) % "not reported" % "slip copy
    * Not Reported & da(aft 1/1/2009 & bef 12/31/2009)
  37. See Arnold, n.32, supra at 223.
  38. Thomas Currier, "Time and Change in Judge-Made Law: Prospective Overruling," 51 Va.L.Rev. 201, 235-38 (1965).

Taylor C. Berger TAYLOR C. BERGER received his law degree from the University of Memphis in 2007 and his LL.M. in taxation from the University of Washington in 2008. He is an associate attorney with Williams, McDaniel, Wolfe and Womack in Memphis, where he focuses his practice on estate planning, taxation, and probate administration and litigation. He is the founding director of the Memphis Area Legal Services Low Income Taxpayer Clinic, a federal grant-funded project that represents low income taxpayers before the IRS and U.S. Tax Court. He is licensed in Tennessee and Mississippi.

The author would like to thank Professor June Entman, without whose insight, guidance, and enthusiasm this article would not have been possible.