Stare decisis is a defining principle of the United States's legal system, widely regarded as crucial to ensuring predictability, fairness, stability, and principled decision-making.[1] Nevertheless, only a small fraction of judges' decisions actually carry precedential value for subsequent litigants. Judges at all levels, and in all courts, frequently issue so-called "unpublished" opinions,[2] which are issued primarily for the benefit of the parties to the case and typically cannot be cited by future litigants as binding precedent, regardless of how similar the facts and issues in those decisions may be.
It is not surprising, therefore, that unpublished opinions are a source of considerable controversy wherever they are commonly issued, including in the federal Courts of Appeals. Although judges and scholars have vigorously debated the appropriateness of treating unpublished opinions as non-binding authority,[3] the Standing Committee on Rules of Practice and Procedure[4] is currently considering a rule change designed to alter the
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treatment of unpublished opinions in the Courts of Appeals without explicitly taking sides in the controversy over precedential effect.[5] The Advisory Committee on Appellate Rules has approved a proposed rule that prohibits courts of appeals from instituting any restrictions on litigants' ability to cite unpublished opinions for their merely persuasive value, without taking a position on whether the various courts of appeal must consider such opinions binding precedent.[6]Although offered principally to foster inter-circuit uniformity regarding litigants' ability to cite unpublished opinions in the federal courts of appeals,[7] ambiguities in the rule's construction and the Advisory Committee's refusal to require that unpublished opinions be considered binding authority would likely result in a regime subject to inconsistency, and therefore unpredictability, on a host of other, equally important issues. Designating unpublished opinions as merely persuasive authority grants judges the discretion to determine the precedential effect of unpublished opinions according to their individual perspectives both on the legitimacy of unpublished opinions generally and on the level of detail and precision required to make any given unpublished opinion sufficiently reliable. As long as judicial resources are inadequate to support a regime in which unpublished opinions are treated as binding, a simple no-citation regime is as, if not more, conducive to inter- and intra-circuit uniformity. It would also be preferable to the Advisory Committee's incremental approach on several other grounds.
The primary purpose of unpublished opinions is to preserve the time and resources both of judges who are overwhelmed by the sizes of their dockets and litigants who are overwhelmed by the amount of case law
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potentially relevant to their arguments.[8] Because unpublished opinions are intended primarily for the parties to the case, they do not require as detailed discussions of facts and issues, or as careful attention to the particularities of language, as opinions intended to establish binding precedent.[9] As a result, the use of unpublished opinions enables judges not only to decide a greater number of cases, but also to take greater care with, and to improve the quality of, the opinions they do publish.[10]
Rules permitting judges to issue unpublished opinions are traditionally coupled with restrictions on their citation by subsequent litigants.[11] Such restrictions are supported by several reasons. Because unpublished opinions are often thought to contain lower-quality writing, reasoning, and detail than published opinions,[12] citation restrictions ensure that judges will not later have their hands tied by any inadequacies in prior, abbreviated dispositions. Meanwhile, restrictions on citation save parties from having to sort through presumably redundant precedent.[13] If unpublished opinions and the restrictions on citations thereof do in fact save resources, their efficiency benefits are substantial, because approximately eighty percent of the opinions issued by the courts of appeals in recent years have been designated as "unpublished."[14]
Currently, the various courts of appeals differ substantially in their rules governing the citation of unpublished or "non-precedential" opin-
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ions. Although all circuits permit the citation of unpublished opinions to establish facts about the case before the court, such as to support claims of res judicata and collateral estoppel,[15] circuits differ regarding the citation of unpublished opinions for more general propositions. Although a majority of circuits do allow citation of unpublished opinions more generally,[16] a minority of circuits flatly prohibit such citation.[17] Those that do allow it differ amongst themselves regarding the circumstances in which unpublished opinions may be cited.[18] Notably, only the D.C. Circuit mandates that unpublished opinions, like other circuit case law, be considered binding precedent,[19] while all other circuits treat such opinions as persuasive, rather than binding, authority.[20]
To date, most of the debate over unpublished opinions has focused on the narrow question of whether unpublished opinions should be given the same binding effect as published opinions from a controlling jurisdiction.[21] At the center of the issue is whether circuit rules allowing unpublished opinions to be designated as anything other than binding authority are consistent with the Article III judicial power.[22] The distinction be-
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tween "persuasive" and "binding" authority has not played a significant role in the arguments on either side, nor has the distinction between rules focusing on the permissibility of citation and rules focusing on precedential effect. In Anastasoff v. United States, for example, the fact that the Eighth Circuit Rule in question permitted unpublished opinions to be cited for their "persuasive value" was irrelevant to Judge Arnold's holding that the rule was unconstitutional.[23] In Hart v. Massanari, Judge Kozinski, writing for the court, came to the opposite conclusion regarding the Ninth Circuit's rule that unpublished dispositions "are not binding precedent" that "may not be cited," but his analysis also focused almost entirely on the issue of "binding precedent."[24] Although Judge Kozinski briefly considered the practical problems with allowing citation for merely persuasive value, he did not separately analyze the constitutionality of the rule's prohibition on citation.[25] Admittedly, some arguments have focused on the prohibition against citing unpublished opinions while leaving aside the issue of what precedential effect courts should give them.[26] The thrust of the debate, however, has assumed that unpublished cases, if properly cited, would bind courts like any other case law from a controlling jurisdiction.
Since it began considering a change to the Federal Rules of Appellate Procedure regarding unpublished opinions, the Advisory Committee has proceeded extremely reluctantly, out of fear that judges would vigorously oppose any move to regulate unpublished opinions. The initial draft of Rule 32.1 was first proposed for the Committee's consideration by the Department of Justice, and the Committee's initial response was decid-
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edly negative.[27] In its first discussion of the proposed rule, in April 2001, the Committee recalled that a similar provision had been considered three years earlier, but was rejected after the chief judges of the various circuits voiced their opposition to any such rule change with "unanimity and much passion."[28] Although the Committee ultimately decided to defer further discussion of the Justice Department's 2001 proposal to a subsequent meeting, the Committee Reporter warned that it would be "a waste of this Committee's time-and perhaps risk the appearance of a lack of respect for the chief judges who responded [negatively in 1998]-to take up this precise proposal again just three years later."[29] Judge Garwood, then chair of the Committee, agreed that "in light of the recent and vehemently negative reaction of the chief judges, he did not think this Committee should even 'stick its toe' in this area."[30]
Concerns about offending judges deeply opposed to the rule change remained the primary argument against the amendment, even after members voted 6-3 the following year to continue consideration of a national rule permitting the citation of unpublished opinions.[31] Supporters of the proposed rule change appeared to seize on support voiced previously by a few chief judges[32] as well as on recent changes to various circuits' rules that suggested increased openness to unpublished opinions.[33] Opponents pointed out that many chief judges, who make up half the membership of the Judicial Conference, continued to be strongly opposed, and that many circuit judges would view the change as the first step toward abolishing non-precedential opinions.[34] Ninth Circuit judges lobbied particularly
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vigorously to convince Committee members to reject the amendment, arguing that unpublished opinions are an inevitable response to docket pressure, and that because caseloads differ among circuits (with Ninth Circuit caseloads being uniquely large), circuits should have the freedom to tailor rules regarding unpublished opinions to their own needs.[35]
Although opposition from judges was ultimately inadequate to stop the Advisory Committee from approving the rule change for public comment, it did inspire several modifications to the language and structure of the rule. After considering several alternatives to the Justice Department's initial proposal, the Advisory Committee ultimately settled on the following draft:
No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like, unless that prohibition or restriction is generally imposed upon the citation of all sources.[36]
Rather than simply stating that unpublished opinions may be cited, the proposed rule ensures the free citation of unpublished opinions by prohibiting any "restriction" on their citation that is not similarly imposed on the citation of published opinions.[37] The Committee opted for the latter construction out of fear that, in the absence of an explicit prohibition on the imposition of restrictions, courts of appeals that are particularly hostile to unpublished opinions would impose enough conditions to defeat the purpose of the rule.[38] Also, the Committee included a list of synonyms for "opinions" to prevent resistant circuits from evading the rule by simply naming their unpublished decisions "orders" or "memorandum dispositions."[39] For the same reason, the Committee also opted to include
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several possible terms for "unpublished," such as "not for publication" and "non-precedential," along with the catch-all phrase "or the like."[40]
Even as the Committee was taking steps to make it difficult for judges to evade the principal purpose of the rule, it also adopted language intended to demonstrate deference to judges who might disagree with the rule change. In particular, the rule was written passively (no restriction "may be imposed") rather than actively ("a court must not impose") because the passive voice sounds less confrontational and is therefore "less likely to raise the hackles of judges."[41] Also, the Committee rejected a draft of Rule 32.1 that included a separate section confirming that "[a] court of appeals may designate an opinion as non-precedential," because the members were unanimously opposed to using a procedural rule to support one side of the debate over the constitutionality of non-precedential opinions and instead wished to "limit the involvement of the Committee to the issue of citation."[42]
Although the Advisory Committee, by its own terms, does not resolve the existing constitutional and policy debates over whether unpublished opinions should be considered binding precedent, it does intend proposed Rule 32.1 to serve several important objectives. First and foremost, the proposed rule creates inter-circuit uniformity on the issue of citing unpublished opinions by overriding the various circuits' local rules, which differ dramatically, with a single, uniform requirement allowing for the citation of unpublished opinions in each of the thirteen courts of appeals.[43] According to the Advisory Committee, conflicting rules create various hardships for practitioners, particularly those who practice in multiple circuits.[44] First, they require practitioners to consult local rules in each circuit.[45] Second, where circuit rules regulate unpublished opinions from other circuits by permitting their citation whenever the issuing circuit would permit, local rule variations may result in the awkward situation of parties being permitted to cite the unpublished opinions of other circuits, but not those of the circuit in which they are litigating.[46] Further, the Advisory Committee believes that it is unfair, as a policy matter, for attorneys to be subject to sanction or charges of unethical conduct simply for citing
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unpublished opinions,[47] which is possible so long as courts of appeals can prohibit citing such opinions.[48]
The Advisory Committee cites additional policy objectives in support of the rule. First, it prevents circuits from prohibiting something that is, at worst, harmless.[49] According to the Committee, it is difficult to justify a system that permits parties to bring to a court's attention "an infinite variety of sources,"[50] including those found in decisions of inferior courts, overruled decisions, dissenting opinions, legislative histories, legal journals, decisions of foreign courts, op-ed pieces and news stories,[51] while at the same time excluding the court's own unpublished opinions.[52] As long as unpublished opinions are accorded the same precedential effect as all other kinds of persuasive authority, the argument goes, there is no cost to offering them for judges' consideration, because judges are always "free to decide whether or not to be persuaded."[53] Further, by giving courts of appeals the flexibility to treat unpublished opinions as merely persuasive authority, the proposed rule preserves the efficiency benefits of unpublished opinions because "[t]he process of drafting a precedential opinion is much more time consuming than the process of drafting an opinion that serves only to provide the parties with a basic explanation of the reasons for the decision."[54] Finally, in those circuits that permit the citation of unpublished opinions only under specific circumstances,[55] the Com-
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mittee argues that Rule 32.1 would eliminate satellite litigation over whether the citation of an unpublished opinion was actually appropriate.[56]
Although Rule 32.1 is primarily intended to promote inter-circuit uniformity by replacing circuit-specific rules governing the citation of unpublished opinions with a single rule allowing citation in each of the thirteen courts of appeals,[57] the ambiguities in the rule's language and the Advisory Committee's unwillingness to require that such opinions be considered binding precedent creates the potential for inconsistencies that dwarf any meaningful gains in inter-circuit uniformity and predictability that the change would accomplish. The designation of unpublished opinions as merely persuasive authority allows judges the discretion to determine precedential effects of unpublished opinions according to their individual views of the legitimacy of unpublished authority and assessments of the quality of unpublished opinions. Given that resource constraints preclude requiring that unpublished opinions be treated as binding authorities, a rule change prohibiting citation of unpublished opinions to any court of appeals would be as, if not more, effective in achieving both inter- and intra-circuit uniformity, and would be preferable for a host of other reasons.
According to the Advisory Committee, the effect of proposed Rule 32.1 is "extremely limited."[58] The rule mandates only that courts of appeals permit parties to cite unpublished opinions in their arguments, which most circuits currently allow anyway.[59] It takes no position on the weight-binding or merely persuasive-that judges must give to unpublished opinions, nor does it indicate whether this choice is to be made by the Judicial Conference, the individual circuits, or judges themselves on a case-by-case basis.[60]
Despite the modesty, and apparent simplicity, of the rule's mandate, there are ambiguities in the rule's current language that, if resolved differently by the various circuits, could themselves undermine the Committee's purpose. First, there are several questions surrounding the meaning of the term "restriction." It is possible to view a circuit's limitation on the citation of unpublished opinions to merely persuasive value as itself a "restriction" not applied to published opinions and therefore contrary to the rule.[61] Only the Committee Note (a kind of legislative history to which some judges may not be willing to refer)[62] makes it clear that the rule is
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not intended to say anything "whatsoever about the effect that a court must give" to cited unpublished opinions.[63] Second, the rule itself is unclear as to whether the language courts of appeals currently use to discourage the citation of unpublished opinions, such as calling it "disfavored,"[64] constitute "restrictions" that violate the rule.[65] Once again, however, the Committee Note provides needed clarification, in this case indicating that these are restrictions to which unpublished opinions should not be subject.[66]
Although Rule 32.1 explicitly addresses only the issue of citation, the Advisory Committee's claim to have remained agnostic on the issue of precedential effect is unrealistic. The Advisory Committee seems to assume that binding and persuasive authority sit on a single continuum of precedential effect, with "binding authority" simply more frequently and effectively persuasive than "persuasive authority."[67] This assumption ignores fundamental differences in the nature of the two kinds of authority. Binding authority replaces judicial discretion with mandates that must be followed, except perhaps by courts of appeals sitting en banc,[68] while persuasive authority assists judges in coming to appropriate resolutions of legal issues for which existing law does not provide clear directives.[69] Those who argue that unpublished opinions should be treated as binding believe that, in a system based on principles of stare decisis, any prior adjudication of the same, indistinguishable legal issue provides the kind of clear directive that entitles litigants to certain outcomes, without their having to persuade judges of the merits of the previous decision.[70] Likening unpublished opinions to other kinds of authority commonly designated as persuasive, and thereby conferring on judges the freedom to decide "whether or not to be persuaded,"[71] indicates a conception of unpublished authority that is entirely inconsistent with the views of those who believe that unpublished opinions must be considered binding precedent and nothing else. By allowing unpublished opinions to be treated as persua-
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sive authority, therefore, the Advisory Committee has, whether it likes it or not, taken a position in the debate over precedential effect.
The Advisory Committee's conception of unpublished opinions is not only incompatible with the views of those who believe that unpublished opinions must be binding, it is also incompatible with its own conception of persuasive authority. According to the Committee, opinions cited for their persuasive value are potentially useful in influencing the court through the depth of their research and the persuasiveness of their reasoning.[72] Unpublished opinions, which are defined primarily by the brevity of their analysis, seem unlikely to provide detailed research or particularly compelling reasoning and are, under this analysis, quite unlikely to be persuasive to judges.
Although Rule 32.1 spares attorneys the confusion and risk associated with inconsistent citation rules, its contribution to inter-circuit uniformity pales in comparison to the intra- and inter-circuit inconsistency that it ignores and arguably encourages. First, it is questionable how much of a "hardship" it is for lawyers to consult circuit-specific rules governing the permissibility of citing unpublished opinions, when lawyers must routinely consult circuit-specific as well as judge-specific rules on a variety of other procedural matters. Although a single citation rule is undoubtedly helpful to lawyers understandably wary about procedural rules and legal sanctions, it is important not to overstate its value when circuit rules, which do not change frequently or without notice, are freely available on courts of appeals's websites and via legal research services.
More significantly, Rule 32.1's failure to require judges to treat unpublished case law as binding precedent subjects attorneys and litigants to both inter- and intra-circuit inconsistency on the precedential effect, if any, such opinions will be given.[73] Litigants cite cases in order to obtain specific, substantive outcomes, which often critically depend on whether the judges deciding their cases treat unpublished opinions as binding.[74] Allowing circuits to treat unpublished opinions as persuasive authority, which many circuits currently do, subjects litigants to the different policy perspectives of individual circuits and judges on the propriety of unpublished opinions as legal authority, a subject upon which circuits and judges passionately disagree.[75] And unlike circuits' citation rules, which are easily available to litigants before they submit their arguments, the willingness of individual judges to be bound by unpublished opinions may be virtually unknowable, except perhaps in the case of judges who have publicly voiced their views on the appropriate precedential effect of unpub-
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lished opinions. Formally designating unpublished opinions as "persuasive" authority, therefore, gives judges the unfettered discretion to operate under judicial regimes governed by their own personal notions of stare decisis.
The Advisory Committee might respond that inconsistency and unpredictability regarding whether judges treat unpublished opinions as binding is no different from the inter- and intra-circuit inconsistency that litigants commonly face, and have come to expect, on the full array of discretionary procedural and substantive judgments that determine the outcome of their cases. There are reasons to reject this counterargument, however. First, inconsistency on the issue of whether a given judge considers unpublished opinions binding authority is arguably less justifiable because, unlike many other kinds of inconsistency, it is relatively easy to avoid. Because appellate court judges are appointed by presidents with different ideological perspectives, panels are frequently composed of judges with different legal and policy perspectives. Although one cannot realistically envision an appellate rule that effectively requires judges to adopt a single judicial philosophy that guarantees consistent adjudications of complicated and value-laden legal questions, it is quite easy to envision an effective rule mandating that all opinions be treated as binding precedent, as the D.C. Circuit has done, and in the process avoid the kind of procedural inequality that would result if only some litigants-that is, those arguing before sympathetic judges-were entitled to the benefit of unpublished precedent.
Second, even to the extent that inconsistency regarding judges' approaches to unpublished opinions is qualitatively indistinguishable from inconsistency regarding their legal philosophies, their similarities do not justify the Advisory Committee's adopting a rule that increases intra- and inter-circuit inconsistency where, as here, greater uniformity and predictability are the Advisory Committee's primary stated policy objectives and where the Advisory Committee could adopt a rule change that achieves the consistency gains of proposed Rule 32.1 without suffering its criticisms. In particular, under a simple no-citation rule, which is currently the policy of some circuits, litigants and attorneys around the country would be aware not only that unpublished opinions cannot be cited but also, a fortiori, that the citations could have no precedential value.
Just as problematic as allowing judges to assign precedential value to an unpublished opinion according to their individual policy perspectives on unpublished opinions is allowing them the discretion to determine its precedential value according to their view of the "quality" of the unpublished opinion at issue. Some commentators have argued that all unpublished opinions should not be treated as binding authority because, by virtue of the fact that judges often dedicate less time and care in drafting
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them, they are unreliable precedents, potentially plagued by cursory reasoning, imprecise wording, and incomplete fact descriptions.[76] Therefore, when litigants cite unpublished opinions as authority, judges should consider the soundness of their reasoning and the level of detail with which the facts are described and then decide, on an opinion-by-opinion basis, whether to consider the case as binding or not.[77] There are, however, several reasons to question whether the precedential effect of unpublished opinions should depend on judges' undertaking such an analysis.
First, it is difficult to understand how judges can, practically speaking, analyze the quality of an opinion without personal knowledge of all of the facts and issues in the case-something, of course, a judge reviewing an opinion is unlikely to have. As mentioned, opponents of allowing unpublished decisions to be cited as persuasive authority argue that they are often unreliable because they present the facts incompletely.[78] In order to determine if a given unpublished opinion is sufficiently reliable, judges would be required to ascertain the degree of detail and accuracy of the facts presented in a given case, but any such analysis seems necessarily to require that the judges have detailed knowledge of the actual facts themselves-something a judge reviewing an opinion is unlikely to have. And because different judges are likely to have different thresholds for the degree of precision and detail they require before they consider an unpublished decision binding, requiring judges to consider the quality of unpublished precedent is likely to create an additional source of intra- and inter-circuit inconsistency.
Concerns about practicality aside, there are additional reasons to reject a regime in which the precedential effect of unpublished opinions turns, at least in part, on judges' analyses of their quality. First, the quality of unpublished opinions, including their legal reasoning, language, and form, are arguably irrelevant to the major reason parties cite unpublished opinions: because the facts of those cases are closer to the facts in their cases than to those of any cases decided by published opinions.[79] Although abbreviated legal reasoning may not provide reliable precedent, even the most cursory descriptions of facts are likely to include at least those details that were ultimately dispositive-otherwise they would be of no value, even in informing parties of the reasons for the decision.[80] Allowing the precedential effect of unpublished opinions to formally depend on
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an arguably irrelevant issue leads to a related concern. In particular, it allows judges to mask their merits-based rejections of the holdings of unpublished opinions by simply attributing any apparent inconsistencies between their holding and the prior holdings to weaknesses in the unpublished opinions. If the facts and arguments from the prior case were spelled out in sufficient detail, judges might argue, the cases would easily be reconciled. Finally, allowing some unpublished opinions but not others to be treated as binding is arguably unfair both to the litigants in the case and to future litigants. The litigants in the case will be at a disadvantage if they seek a writ of certiorari on the basis of an unpublished opinion that may contain a sparser record, while only some future litigants will get the benefit of unpublished authority, depending on how much time and attention the judge deciding the prior case happened to dedicate to drafting the opinion.
The Advisory Committee's decision to require that unpublished opinions be available for citation, but not that they be treated as binding authority, provides judges with an extraordinary amount of discretion and results in a regime that fails to achieve meaningful gains in inter- or intra-circuit uniformity or predictability, while imposing additional sources of intra-circuit inconsistency on those circuits that currently prohibit citation entirely. If the Advisory Committee insists that unpublished opinions be available for citation, it must also require that they be accorded the same binding effect as other cases from controlling jurisdictions. The major obstacle to this approach, as the Advisory Committee recognizes, is that judges may simply not have the time or resources to produce fully precedential opinions in each of their cases.[81] Until the number of judges increases, or some other solution is found to reduce their caseloads, there are several reasons to favor a no-citation regime to the Advisory Committee's proposed approach.
Most importantly, a no-citation rule would, as mentioned, reduce the inter- and intra-circuit disuniformity inherent in a regime in which it is left to individual judges to decide whether unpublished opinions are legitimate sources of authority and whether the reasoning contained in any given unpublished opinion is sufficiently sound to justify reliance in a later case. Admittedly, the fact that unpublished cases are uncited by litigants does not necessarily imply that they will never enter judges' consideration of the issues in a case, because some judges who favor, or who are at least not opposed, to unpublished opinions could, in theory, look to them for guidance irrespective of a no-citation rule. Although there is force to this argument, there are several responses to it.
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First, this argument ignores the extent to which a rule prohibiting parties from citing unpublished opinions would also act as a signal to judges that unpublished opinions are not to enter their deliberations. Second, it underestimates the importance of citation in limiting the arguments litigants expect judges to address and the authorities litigants expect judges to reconcile with their decisions. And, perhaps most importantly, a blanket prohibition on citation frees judges from the obligation of having to explain individual decisions not to follow holdings and reasoning arguably contained in unpublished opinions. As unpublished opinions differ from published opinions in the judicial time and attention they receive, later refusing to follow the rules and decisions of those cases implies that prior decisions may have been decided wrongly, and that the error was the result of carelessness.[82] Having to include such acknowledgements in widely available opinions calls additional attention to any actual or apparent inconsistencies, which increases public perception of judicial unpredictability and reflects negatively on the administration of justice. Prohibiting unpublished opinions from being cited, and therefore being included in the litigation process, forces such opinions out of sight and, to a certain extent, out of mind.
Beyond issues of consistency and predictability, there are additional reasons to favor a no-citation regime. First, excluding unpublished opinions, even as persuasive authority, is much more consistent with the commonly held conception of unpublished opinions as containing relatively unreliable fact descriptions and legal reasoning, and much more cognizant of the difficulties associated with attempting, after the fact, to identify useful unpublished opinions. Also, the fact that several circuits ban citation entirely suggests that at least some judges agree that there are unique costs to allowing citation by itself, and similarly minded judges may take steps to avoid the effects of the proposed rule. First, they might decide, individually or by circuit rule, to provide little or no explanation for decisions in cases that, under current rules, they might instead dispose of by a somewhat less detailed, non-precedential opinion.[83] Second, they may adopt rules preventing judges from citing unpublished opinions in their decisions,[84] thereby diminishing attorneys' incentives to cite such opin-
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ions in the first place.[85] Measures such as these arguably help judges create at least the appearance of judicial consistency by controlling the amount of case law that is publicly available and that therefore must be reconcilable. No-citation regimes serve a similar purpose, with the added benefit of making it more likely that litigants receive at least a short statement of the reasons they either won or lost their cases.
Although offered principally to achieve inter-circuit uniformity, the Advisory Committee's rule change would result in a regime that is equally, perhaps more, vulnerable to inconsistencies in judicial process, not only among circuits but also among judges. The Advisory Committee cannot make meaningful progress in clarifying or resolving the debate over unpublished opinions without either excluding unpublished opinions entirely or treating them no differently than published opinions. Until judges have the resources to give full attention to every case in their burgeoning caseloads, the Standing Committee would be better off, at least with respect to consistency and predictability, proposing a single, nationwide rule prohibiting citation or, in the least, withdrawing Proposed Rule 32.1 so that the no-citation rules that are currently in force in several circuits remain in place.
-Niketh Velamoor
[1] See 3 Joseph Story,
Commentaries on the Constitution of the United States § 377 (1833) ("A more
alarming doctrine could not be promulgated by any American court, than that it was at
liberty to disregard all former rules and decisions, and to decide for itself, without
reference to the settled course of antecedent principles.").
[2] Read literally, the term is misleading, given that
such opinions are often posted on the issuing courts' websites, made available through
online services such as Lexis and Westlaw, and published in traditional print in West's
Federal Appendix, a case-reporter series consisting entirely of
"unpublished" opinions from the federal circuits. See Stephen R. Barnett,
From Anastasoff to Hart to West's Federal Appendix: The Ground
Shifts Under No-Citation Rules, 4 J. App. Prac. & Process 1, 2-3 (2002). In
fact, "unpublished opinions" is a term of art given to those dispositions
designated by the issuing court as having no (or limited) precedential value. See
Memorandum from Judge Samuel A. Alito, Jr., Chair of Advisory Comm. on App. Rules, to Judge
Anthony J. Scirica, Chair of Standing Comm. on Rules of Prac. & Proc., Report of
Advisory Committee on Appellate Rules 27-36, 32 (May 22, 2003) [hereinafter
Committee Memorandum], available at
http://www.uscourts.gov/rules/app0803.pdf
(last visited Mar. 12, 2004).
[3] See infra text accompanying notes
21-26.
[4] Congress has authorized the federal judiciary to
prescribe the rules of practice, procedure, and evidence for the federal courts, subject to
the ultimate right of Congress to reject, modify, or defer any of the rules. The authority
and procedures for promulgating rules are set forth in the Rules Enabling Act. 28 U.S.C.
§§ 2071-2077 (2000). The Judicial Conference's responsibilities as to
rules are coordinated by its Committee on Rules of Practice and Procedure, commonly referred
to as the "Standing Committee," id. § 2073(b), which has authorized
the appointment of five advisory committees, including one specifically dealing with
appellate rules. Id. § 2073(a)(2). The Standing Committee reviews and
coordinates the recommendations of the five advisory committees, and recommends to the
Judicial Conference proposed rule changes "as may be necessary to maintain consistency
and otherwise promote the interests of justice." Id. § 2073(b). The process
by which a new rule of appellate procedure becomes "law" is elaborate, involving a
minimum of seven stages of formal comment and review that typically take two to three years
to complete. See The Rulemaking Process, at
http://www.uscourts.gov/rules/proceduresum.htm.
Rule changes are typically proposed by various members of the legal community and considered
by the appropriate advisory committee. See id. If an advisory committee votes to
recommend a rule change, it must obtain the Standing Committee's approval to publish
the proposed amendment for public comment. See id. If, after considering public
comment, the advisory committee votes to proceed, the Standing Committee then considers the
proposed change. See id. If the Standing Committee accepts the rule change, the
change then must be approved by the Judicial Conference and the Supreme Court, and then
avoid rejection by Congress. See id. Congress need not, however, explicitly approve a
rule for it to take effect. See id.
[5] See infra text accompanying notes
43-56.
[6] For the text of the rule, see infra text
accompanying note 36. The Advisory Commit-tee on
Appellate Rules approved the rule change by a vote of 7-2. See Tony Mauro,
Judicial Conference Group Backs Citing of Unpublished Opinions, Legal Times, Apr. 15,
2004, available at http://www.law.com/jsp/article.jsp?id=1081792928522;
Federal Rule-making, Advisory Rules Committees Actions: Spring 2004 Meetings,
at http://www.uscourts.gov/rules/index.html#advspring04.
Nevertheless, there are several procedural hurdles that must be overcome before the rule
change is finally implemented. The proposed rule will now be considered by the Standing
Committee at its June 2004 meeting. Federal Rulemaking, Advisory Rules Committees
Actions: Spring 2004 Meetings, at
http://www.uscourts.gov/rules/index.html#advspring04.
If the Standing Committee approves the rule, it will go to the Judicial Conference in
September 2004 and, with its approval, to the Supreme Court, which will have until May 1,
2005 to decide whether to adopt it. See Federal Rulemaking, Pending Rules Amendments
Awaiting Final Action, at http://www.uscourts.gov/rules/newrules6.html.
If the Supreme Court does so, the rule will go to Congress and will take effect on December
1, 2005, unless Congress passes legislation blocking it. See id.
[7] See infra text accompanying notes
43-48.
[8] See, e.g., 1st Cir. R. 36(a) (judges may
issue unpublished opinions "in the interests . . . of expedition"); 2d Cir. R.
0.23 ("The demands of an expanding case load require the court to be ever conscious of
the need to utilize judicial time effectively."). In addition to judicial efficiency,
restrictions on the citation of unpublished opinions have also been thought to promote
procedural fairness between litigants, on the grounds that poorer litigants may not have the
same level of access to unpublished opinions as do their wealthier counterparts. See
Committee Memorandum, supra note 2, at
34. This argument has lost force, however, since Congress mandated that courts of appeals
post all of their opinions, including those designated "unpublished," in a
"text searchable format" on their websites. See E-Government Act of 2002,
Pub. L. No. 107-347, § 205(a)(5), 116 Stat. 2899, 2913 (2003). Unpublished opinions are
also often published in the Federal Appendix and posted on Lexis and Westlaw,
see supra note 2, although these
latter sources may not be widely available to less wealthy litigants.
[9] See Marla Brooke Tusk, No-Citation Rules
as a Prior Restraint on Attorney Speech, 103 Colum. L. Rev. 1202, 1214 (2003).
[10] See id.
[11] See, e.g., 9th Cir. R. 36-1 and 9th Cir.
R. 36-3(b).
[12] See id. at 1210.
[13] See, e.g.,1st Cir. R. 36(a)
(Unpublished opinions are helpful in "saving time and effort in research on the part of
future litigants."). This argument, however, seems to discount the ability of parties
to narrow electronic research results through effective research techniques while, of
course, providing little consolation to litigants who would benefit from citing unpublished
opinions that are particularly helpful to their arguments.
[14] See Admin. Office of the United States
Courts, Judicial Business of the United States Courts 2003, tbl. S-3 (2003), at http://www.uscourts.gov/judbus2003/tables/USCourtAppeals.pdf.
The Circuit with the highest percentage of decisions by unpublished opinion or order, 91%,
was the Fourth. The Circuit with the lowest percentage, only 39%, was the First. The Ninth
Circuit, with a larger caseload than any other circuit, issued the highest aggregate number
of unpublished opinions, over 4400, or 84% of its total caseload.
[15] In some circuits, permission to cite unpublished
opinions for these limited reasons is explicitly granted in the local rules. See 2d
Cir. R. 0.23; 7th Cir. R. 53(b)(2)(iv); 9th Cir. R. 36-3(b). Although the local rules of
other circuits do not explicitly permit citation for these reasons, no circuit has ever
sanctioned an attorney for citing an unpublished opinion under these circumstances. See
Committee Memorandum, supra note 2, at
3.
[16] The First, Third, Fourth, Fifth, Sixth, Eighth,
Tenth, Eleventh, and D.C. Circuits permit the citation of unpublished opinions for their
persuasive value. See 1st Cir. R. 32.3(a)(2); 4th Cir. R. 36(c); 5th Cir. R. 47.5.4;
6th Cir. R. 28(g); 8th Cir. R. 28A(i); 10th Cir. R. 36.3; 11th Cir. R. 36.3 I.O.P. 5.
[17] See 2d Cir. R. 0.23; 7th Cir. R.
53(b)(2)(iv); 9th Cir. R. 36-3(b).
[18] Some circuits allow citation to an unpublished
opinion only if it has precedential value with respect to a material issue that has not been
addressed in a published opinion. See 4th Cir. R. 36(c); 6th Cir. R. 28(g); 8th Cir.
R. 28A(i); 10th Cir. R. 36.3. The First Circuit is slightly more liberal in its citation
rules. While it too does not favor citation of unpublished cases, it requires only that
there be no published cases from within the circuit addressing the relevant issue.
See 1st Cir. R. 32.3(a)(2). The Fifth and Eleventh Circuits allow citation without
restriction, but reliance on such opinions is disfavored. See 5th Cir. R. 47.5.4;
11th Cir. R. 36.3 I.O.P. 5. Third Circuit Rules seem to apply to the citation of unpublished
cases by the court, not by litigants. See 3d Cir. I.O.P. 5.7 ("The court by
tradition does not cite to its not precedential opinions as authority."). See
also Stephen R. Barnett, No-Citation Rules Under Siege: A Battlefield Report and
Analysis, 5 J. App. Prac. & Process 473, 474 n.8 (2003).
[19] D.C. Cir. R. 28(c)(1)(B) provides that
unpublished dispositions entered on or after January 1, 2002, "may be cited as
precedent." D.C.Cir. R. 36(c)(2) cautions, however, that "a panel's
decision to issue an unpublished disposition means that the panel sees no precedential value
in that disposition." Unpublished dispositions issued prior to January 1, 2002, may be
cited only for purposes of res judicata, collateral estoppel, and law of the case.
See D.C.Cir. R. 28(c)(1)(A).
[20] See rule cited supra note16.
[21] See, e.g.,Anastasoff v. United
States, 223 F.3d 898, 904 (8th Cir. 2000).
[22] Compare Hart v. Massanari,266
F.3d 1155, 1159-80 (9th Cir. 2001) (holding that U.S. Const. Art. III does not
explicitly or implicitly require that all case dispositions and orders issued by appellate
courts be binding authority; on the contrary, an inherent responsibility of Article III
judges is managing precedent to develop a coherent body of circuit law to govern litigation
in the circuit court and the other courts of the circuit), with Anastasoff, 223 F.3d
at 900, 904 (holding that 8th Cir. R. 28A(i) providing that unpublished decisions are not
binding on future panels violates Article III because the doctrine of precedent was
"well-established" when the Framers drafted the Constitution; any exercise of the
"judicial power" is binding upon future panels because to depart from such a rule
would be "an approach to tyranny and arbitrary power, to the exercise of mere
discretion, and to the abandonment of all the just checks upon judicial authority"),
vacated as moot on reh'g en banc 235 F.3d 1054 (8th Cir. 2000). See also
Symbol Tech., Inc. v. Lemelson Med., Educ. & Research Found.,277 F.3d 1361,
1366-68 (Fed. Cir. 2002) (wholly adopting the reasoning of Hart); Williams v.
Dallas Area Rapid Transit, 256 F.3d 260, 260 (5th Cir. 2001) (Smith, J., dissenting from
denial of reh'g en banc) (calling for en banc review of the circuit's
"questionable practice of denying precedential status to unpublished opinions").
Some commentators have offered alternative constitutional objections to treating unpublished
opinions as nonbinding. See, e.g., Jon A. Strongman, Comment, Unpublished
Opinions, Precedent, and the Fifth Amendment: Why Denying Unpublished Opinions Precedential
Value is Unconstitutional, 50 U. Kan. L. Rev. 195, 212 (2001) (treating unpublished
opinions as non-binding violates due process because it allows courts to ignore prior
decisions arbitrarily).
[23] See 223 F.3d at 904 (citing 8th Cir. R.
28A(i)).
[24] Hart, 266 F.3d at 1159 (citing 9th Cir.
R. 36-3).
[25] See Hart, 266 F.3d at 1178.
[26] See Tusk, supra note
9, at 1226-30 (arguing that absolute
prohibitions on citing unpublished opinions constitute a prior restraint on speech that is
impermissible under the First Amendment). This objection, unlike many others, is met by the
Advisory Committee's proposed rule mandating that parties be allowed to cite
unpublished opinions at least for their persuasive value.
[27] Minutes of Spring 2001 Meeting of Advisory
Committee on Appellate Rules 64 (Apr. 11, 2001) [hereinafter Spring 2001
Meeting], available at
http://www.uscourts.gov/rules/Minutes/app0401.pdf.
[28] See id. Judge Garwood, then chair
of the Committee, wrote to the chief judges of the Courts of Appeals on January 28, 1998,
asking their views on whether the rules should be amended to specify the circumstances, if
any, under which "unpublished" opinions may be cited. Id. All of the chief
judges responded, except two, and those who did answered "absolutely not."
Id. They were adamant that they did not want the Advisory Committee to regulate
unpublished decisions in any way. See id.
[29] See id. at 64-65.
[30] See id. at 65.
[31] Minutes of Spring 2002 Meeting of Advisory
Committee on Appellate Rules 25 (Apr. 22, 2002) [hereinafter Spring 2002
Meeting], available at
http://www.uscourts.gov/rules/Minutes/app0402.pdf.
[32] Id. at 23-24. In particular, another
survey indicated the chief judges of the Third, Tenth, and Eleventh Circuits would support
an amendment explicitly permitting citation of non-precedential opinions, while the chief
judge of the Sixth Circuit indicated support only for a rule that mirrored the Sixth
Circuit's existing rule, which disfavors but nevertheless permits citation if the
unpublished opinion bears on a material issue and no published opinion is available. See
id. at 23. The chief judges of the First, Fourth, Eighth, Ninth, and Federal Circuits
expressed opposition, while the chief judge of the Fifth Circuit said the judges of her
circuit were divided. Id. The chief judges of the Second, Seventh, and D.C. circuits
did not respond to the survey. Id.
[33] See id. at 24. In particular, the
Committee pointed to the D.C. Circuit's recent rule change permitting citation of
unpublished opinions. See id.
[34] See id. at 25.
[35] Minutes of Fall 2002 Meeting of Advisory
Committee on Appellate Rules 36 (Nov. 18, 2002) [hereinafter Fall 2002 Meeting],
available at http://www.uscourts.gov/rules/Minutes/app1102.pdf.
[36] Proposed Fed. R. App. P. 32.1(a).The
rule also contains a second subsection:
A party who cites a judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database must file and serve a copy of that opinion, order, judgment or other written disposition with the brief or other paper in which it is cited.
Proposed Fed. R. App. P. 32.1(b). This requirement is commonly required
by circuits that permit citation of unpublished opinions. See, e.g., 1st Cir. R.
32.3(a)(3).
[37] See Proposed Fed. R. App. P. 32.1(a).
The Committee acknowledged that its approach was not necessarily the easiest to
understand. See Minutes of Spring 2003 Meeting of Advisory Committee on Appellate
Rules 16 (May 15, 2003) [hereinafter Spring 2003 Meeting], available at
http://www.uscourts.gov/rules/Minutes/app0503.pdf.
[38] See Fall 2002 Meeting, supra note
35, at 38.
[39] See id. at 39.
[40] See Spring 2003 Meeting, supra
note 37, at 16.
[41] See id. at 15-16.
[42] See Fall 2002 Meeting, supra note
35, at 35.
[43] See Committee Memorandum, supra
note 2, at 27.
[44] See id.
[45] See id.
[46] As the Advisory Committee notes, see id.
at 32-33, the Seventh Circuit prohibits the citation of its own published opinions
except to support claims of res judicata, collateral estoppel, or law of the case, see
7th Cir. R. 53(b)(2)(iv), but permits the citation of unpublished opinions of other
courts when the rendering court permits. See 7th Cir. R. 53(e).
[47] See Committee Memorandum,
supra note 2, at 27.
[48] See Hart, 266 F.3d at 1159 (noting that
the attorney was ordered to show cause why he should not be disciplined for violating the
no-citation rule); ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 94-386R
(1995) ("It is ethically improper for a lawyer to cite to a court an
'unpublished' opinion . . . where the forum court has a specific rule prohibiting
any [such] reference . . . .").
[49] See Committee Memorandum,
supra note 2, at 32. Furthermore, according
to the Committee, the rule is at best helpful, because it will "further the
administration of justice by expanding the sources of insight and information that can be
brought to the attention of judges." See id. at 35.
[50] See id. at 32.
[51] See Tusk, supra note
9, at 1232.
[52] See Committee Memorandum,
supra note 2, at 32 (noting that parties have
always been able to cite "an infinite variety of sources" for their persuasive
value, including cases from "foreign jurisdictions, law review articles, treatises,
newspaper columns, Shakespearian sonnets, and advertising jingles" and "[n]o court
of appeals places any restriction" on their citation).
[53] See id. at 32.
[54] See id. at 33. The Advisory Committee
rejects the notion that simply requiring that unpublished opinions be citable will
significantly increase the workload of judges wary of greater public scrutiny, because the
fact that unpublished opinions are already widely available itself provides judges with
incentive to take care in drafting non-precedential opinions. See id. at 33. Judge
Kozinski, for his part, disagrees. See Hart, 266 F.3d at 1178 ("Should courts
allow parties to cite to these dispositions, however, much of the time gained would likely
vanish."). On this issue, and in general, the Advisory Committee is walking a
tightrope. If public availability of unpublished opinions itself forces judges to take care
in drafting, one wonders how much more onerous it would be to make all opinions not only
citable but binding as well and, therefore, how much judicial resources the Advisory
Committee is preserving with its "limited" approach.
[55] See supra note
18.
[56] See Committee Memorandum,
supra note 2, at 34-35.
[57] See supra text accompanying notes
43-48.
[58] Committee Memorandum, supra note
2, at 28.
[59] See Barnett, supra note
18, at 474-75.
[60] See Committee Memorandum, supra
note 2, at 28. The Advisory Committee's
decision not to propose a uniform rule regarding the issue of precedential weight has some
support in the literature. See, e.g.,Barnett, supra note
18, at 490 ("No equally forceful arguments
require cited opinions to be accorded any particular weight, whether
'precedential' or only 'persuasive.'"); Tusk, supra note
9, at 1230.
[61] See Barnett, supra note
18, at 491.
[62] See id.
[63] Committee Memorandum, supra note
2, at 28.
[64] For examples from the rules of various circuits,
see supra note 18.
[65] See Barnett, supra note
18, at 492.
[66] See Committee Memorandum,
supra note 2, at 34.
[67] Viewing binding and persuasive authority on a
single continuum is not uncommon. See Barnett, supra note
2, at 9 (describing a single "Spectrum of
Precedent" that includes both binding and persuasive authorities).
[68] See id. at 9.
[69] See id. at 11. It is, of course,
interesting that Barnett acknowledges these distinctions between binding and persuasive
authority in the same article in which he describes a single "spectrum." Id.
at 9.
[70] See Anastasoff v. United States, 223 F.3d
898, 899-900 (8th Cir. 2000) ("Inherent in every judicial decision is a
declaration and interpretation of a general principle or rule of law . . . . This
declaration of law is authoritative to the extent necessary for the decision, and must be
applied in subsequent cases to similarly situated parties.").
[71] See Committee Memorandum,
supra note 2, at 32.
[72] See Fall 2002 Meeting,
supra note 42, at 25.
[73] See Barnett, supra note
18, at 489-90 ("If one of the goals of
Rule 32.1 is to unify divergent citation rules of the circuits, that goal arguably applies
as much to weight as to citability.").
[74] See, e.g., Anastasoff, 223 F.3d at
899.
[75] See Committee Memorandum,
supra note 2, at 27-28.
[76] See Tusk, supra note
9, at 1234.
[77] See id.
[78] See id.
[79] See Barnett, supra note
2, at 18 (noting "that the law is not what the
judges say, it's what they decide") (emphasis in the original).
Cf. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 460-61
(1897) (defining the law as what the courts "do in fact").
[80] See Barnett, supra note
2, at 18 ("Although imprecise language indeed
may mask the true facts of a case, law clerks and staff attorneys are good at stating
facts-they do it often enough in published opinions-and lawyers and judges have
abundant experience in distinguishing cases on their facts.").
[81] See Tusk, supra note
9, at 1208 n.30 (noting that circuit court filings
grew by nine percent between 1960 and 1983 and the number of appellate judges grew by three
percent between 1960 and 1995).
[82] See Williams v. Dallas Area Rapid
Transit, 242 F.3d 315, 318-19 n.1 (5th Cir. 2001) (declining to be persuaded by two
prior, unpublished opinions because neither case delivered "a thoughtful and/or
detailed argument" with respect to Eleventh Amendment immunity"). The
Williams court's characterization of the unpublished opinions would likely be
troublesome news to the prior, unsuccessful litigants. It would also be troubling, and
likely embarrassing, to the judges responsible.
[83] See Fall 2002 Meeting,
supra note 35, at 36-37; see also
Howard Bashman, How Appealing, Interview with Judge Posner, available
at http://20q-appellateblog.blogspot.com
(suggesting that judges may reduce unpublished opinions to a single-line holding of
"Affirmed" or "Reversed").
[84] See, e.g., 3d Cir. I.O.P. 5.7 ("The
court by tradition does not cite to its not precedential opinions as authority.").
[85] See Barnett, supra note
18, at 495.
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