1

ADMINISTRATIVE OFFICES OF THE U.S. COURTS

ADVISORY COMMITTEE ON APPELLATE RULES

Tuesday, April 13, 2004

One Columbus Circle, N.E.

Washington, D.C. 20544

PARTICIPANTS

HONORABLE SAMUEL A. ALITO, JR., Chairman

PROFESSOR PATRICK J. SCHILTZ

HONORABLE CARL E. STEWART

MARK I. LEVY, ESQ.

PROFESSOR CAROL ANN MOONEY

DOUGLAS LETTER, ESQ.

Representative of Solicitor General

SANFORD SVETCOV, ESQ.

MARCIA W. WALDRON

Circuit Court

MARIE LEARY

Federal Judicial Center

PROFESSOR DANIEL R. COQUILLETTE

PETER G. McCABE

Secretary, Commission on Rules of Practice and

Procedure

HONORABLE JOHN G. ROBERTS, JR.

HONORABLE T.S. ELLIS, III

W. THOMAS McGOUGH, JR., ESQ.

JOHN K. RABIEJ

Chief, Rules Committees Support Office

HONORABLE DAVID F. LEVI

HONORABLE J. GARVIN MURTHA

C O N T E N T S

TESTIMONY OF: PAGE

Hon. Myron H. Bright, United States 6

Circuit Court of Appeals for the Eighth

Circuit, Fargo, ND

Honorable Diane P. Wood, United States 24

Court of Appeals for the Seventh Circuit,

Chicago, IL

Richard Frankel, Goldberg-Deitzler Fellow, 66

Trial Lawyers for Public Justice,

Washington, D.C.

Judah Best of Debevoise & Plimpton, on 86

behalf of the Section of Litigation,

American Bar Association, Washington, D.C.

Professor Stephen R. Barnett, Elizabeth 101

J. Boalt Professor of Law, Emeritus,

University of California, Berkeley

(Boalt School of Law), Berkeley, CA

Honorable Haldane Robert Mayer, Chief 126

Judge, United States Court of Appeals

for the Federal Circuit, Washington, D.C.

Honorable John M. Walker, Jr., Chief Judge, 182

United States Court of Appeals for the

Second Circuit, New Haven, CT

Carter G. Phillips of Sidley Austin Brown 200

& Wood, LLP, chair of the Federal Circuit

Advisory Committee, Washington, D.C.

William T. Hangley of Hangley Aronchick 210

Segal & Pudlin, on behalf of the

American College of Trial Lawyers,

Philadelphia, PA, and James Morris,

President-Elect, American College of Trial

Lawyers, Richmond, VA

Honorable Edward R. Becker, United States 235

Court of Appeals for the Third Circuit,

Philadelphia, PA

C O N T E N T S (Continued)

TESTIMONY OF: PAGE

Jessie Allen, Associate Counsel, Brennan 257

Center for Justice, New York University

School of Law, New York, NY

John A. Taylor, Jr. of Horvitz & Levy LLP, 274

chair of the California State Bar

Association Appellate Courts Committee,

Encino, CA

Steven R. Wallach of Morrison Cohen Singer 314

& Weinstein, LLP, New York, NY

Brian Wolfman, Director, Public Citizens 325

Litigation Group, Washington, D.C.

1 P R O C E E D I N G S

2 JUDGE ALITO: Can we come to order? We're

3 here this morning to hear statements concerning a

4 number of rules that we have published for comment.

5 We've received over 500 comments. Most of them

6 have been about a rule concerning unpublished

7 opinion or our rule concerning the counting of

8 votes for rehearing en banc. We've also had

9 comments on a new proposed rule regarding briefing

10 in cross-appeals, not very many comments on our

11 proposal to change the reference to President's Day

12 to Washington's Birthday, but maybe one of the

13 witnesses this morning will want to comment on

14 that.

15 We appreciate the tremendous line-up of

16 witnesses that we have this morning representing a

17 broad array of views and a great deal of

18 experience. The first witness on our list is the

19 Honorable Myron H. Bright, United States Court of

20 Appeals for the Eighth Circuit. Judge Bright?

21 STATEMENT OF THE HON. MYRON H. BRIGHT

22 JUDGE BRIGHT: Good morning, Mr. Chairman

1 and members of the committee, staff, and guests. I

2 am the first hitter, lead-off, so I don't expect to

3 be like Casey and strike out but I'll do the best I

4 can.

5 I'm really very pleased to be here to

6 discuss Rule 32.1, as proposed, and to tell you why

7 I oppose it. I do so on the basis of my

8 experience. I've been a federal appellate judge 35

9 plus years and I've sat with many of the courts and

10 I've been a senior judge now for almost 19 years.

11 And I might mention that as a senior judge I've

12 served frequently not only in my own circuit, which

13 is the Eighth, but I've served with the Second, the

14 Third, the Sixth, the Ninth, and the Eleventh

15 Circuits and somewhat less consistently with the

16 Fifth, the Seventh and the Tenth Circuits. So I've

17 been around a while.

18 I'm at the stage of life, incidentally,

19 known as the fourth stage. The first stage is

20 young. The second stage is middle-aged, as some of

21 you are. The third stage is a little older, as

22 maybe one or two may be around here. And the

1 fourth stage is "You're looking good." In point of

2 time and seniority, I'm the ninth in point of

3 service of all of the appellate judges in this

4 country.

5 Now I know you've had hundreds of comments

6 on Rule 32.1, some for, some against, and Dean

7 Schiltz--you know, I always mispronounce that,

8 Dean. I should know it because my daughter married

9 a guy by the name of Schultz, which is not too far

10 different. And I know you've given the committee

11 and those of us who are testifying and others

12 really a very good summary and a conclusion, which

13 I may not agree with in all events but you have

14 your views and I certainly respect them.

15 I'm speaking here for the Eighth Circuit.

16 As you know, Jim Loken, our chief judge, has

17 written a letter pointing out that 10 of 13 judges

18 on our court who responded opposed the rule and

19 three approved the proposed rule. I also speak on

20 my own behalf and most of the remarks are really my

21 own views.

22 While I'm going to speak on my experience,

1 I want to mention four letters, three of which you

2 have and the fourth one you'll have because it was

3 written to me. Those letters are really quite

4 significant to me because they represent a spectrum

5 of people that I know and respect and their views

6 are pretty important.

7 On one side of the coin is Ken Starr.

8 Now, as you know, he was an appellate judge. He's

9 now an appellate attorney and soon, Patrick, he's

10 going to be a dean. On the other side of the coin

11 is a person who's been an appellate practitioner

12 and I've done programs with him and is now an

13 appellate judge, and that's Tim Dyk of the Federal

14 Circuit. I also have a great deal of regard for a

15 letter which I have from Gerald Tjoflat of the

16 Eleventh Circuit. He and I go back a long time.

17 We've served on committees together. We've been

18 great friends. And I have a copy of that letter,

19 which I'll see that you get. And the fourth is

20 from the Attorney General when I became a judge,

21 and that's Ramsey Clark.

22 Let me go back a little bit in appellate

1 history. If there were a perfect appellate world,

2 when I became a member of the court it was almost

3 perfect. We heard arguments in every case unless

4 it was a pro se appeal, no lawyer, or unless it was

5 just frivolous and dismissed. We gave each case

6 full treatment, published an opinion unless it had

7 been dismissed earlier.

8 Well, we soon had to change. The Eighth

9 Circuit adopted the nonpublication rule in 1973 and

10 we followed the leading circuit, and that was a big

11 Fifth Circuit which just had so many cases that

12 they had to do something, so they developed a

13 program of screening the cases, putting them on a

14 fast track with no argument if they didn't seem to

15 justify full treatment and writing a very short

16 opinion, really for the parties and giving their

17 reasons therefore.

18 In the '70s and '80s, with the litigation

19 explosion and, of course, the increase in appeals

20 in the federal courts, that nonpublication rule

21 really became a judicial necessity. The language

22 "unpublished" simply means, to me, that we judges

1 have not had the time to carefully write an opinion

2 to worry about precedent and we really concentrate

3 only on is the result right? And lots of times the

4 work on opinions, maybe most of the time, is not

5 our own.

6 Let's turn for a moment though to compare

7 how I as an appellate judge and I think many of the

8 appellate judges look at a case as compared to the

9 lawyers, and there are a number of lawyers who are

10 here and are in favor of the proposed rule and part

11 of it, I think, is because the perspective on which

12 we're on.

13 Now with the appellate lawyer, and many of

14 you have or are appellate lawyers, the appellate

15 lawyer really puts the sources together, puts the

16 cases together and serves it out to us on a plate.

17 Not too much of it is original except how it's

18 arranged. On the other hand, when we have to write

19 an opinion for precedent, we are really an author.

20 We're a creative writer. When I was first a judge

21 and it just scared the living you-know-what out of

22 me and I'd done a lot of appellate work but it was

1 different. And, as you know, writing an opinion is

2 different. So there's a difference of

3 perspective there, members of the committee.

4 Listen, I've written on cases, and many of

5 you have, and I've worked weeks, sometimes months

6 on a case and it takes very thoughtful, careful

7 writing and editing to write an opinion which you

8 know is going to be precedent. It requires

9 extensive work and very careful writing. I try to

10 make every phrase, every sentence, even every

11 paragraph really meaningful and right to the point.

12 Now I want to remind you that to change

13 the no-citation rule to allow all opinions to be

14 cited puts into the inventory of cases each year

15 about 20,000 of the 27,000 cases decided by the

16 appellate courts. About 80 percent of the cases,

17 as you know, are nonpublished opinions.

18 Sometimes I think there's too much law out

19 there, you know? The Federal Reporter Second was

20 391 when my name appeared as a judge and now it's

21 at 370 Federal Third, 969 volumes later, and the

22 volumes are thicker now, you know? Estimating at

1 1,500 pages per volume and that's not a bad

2 estimate, I don't think, we have between 1.3 and

3 1.4 million pages of legal writing.

4 I make two other comments. I know you've

5 been exposed to the argument that if unpublished

6 opinions are citable, judges will take time away

7 from the important cases that they want to write a

8 publication opinion on and will not be able to

9 spend that much time. I think that argument is

10 well taken. Adding so much law in over 20,000

11 opinions published each year will really mean from

12 a research standpoint the cup runneth over.

13 I'm a firm believer, having sat with many

14 circuits, that while the way we sit and the way we

15 decide cases is pretty much the same, the

16 procedures vary and I believe that the circuits

17 should have the right and prerogative to handle

18 their own caseload in the best way possible. As

19 you know, some courts don't allow any citation of

20 unpublished opinion except in narrow areas, like

21 res judicata, law of the case, and so forth, and

22 others allow it in limited circumstances.

1 Now I want to mention a couple of circuits

2 and I know that Judge Walker's going to be here

3 from the Second Circuit but I've sat there many

4 times and I love that court because they hear

5 arguments on almost everything and I love to hear

6 oral argument. But in those cases we hear the oral

7 argument, we've done our preparation, we really on

8 the bench ordinarily say, "Is there anything to

9 write?" "Well, we're going to affirm." The judge

10 writes a short opinion, usually the presiding

11 judge. The other two judges take a quick look and

12 concur and the next day there's an order going out,

13 which usually affirms. Very few unpublished

14 opinions reverse that I've seen and they shouldn't.

15 Now I see no reason in the Second Circuit,

16 for example, to make those opinions published and

17 citable without a lot more work on the part of the

18 judges.

19 Now the Ninth Circuit has its own special

20 problems. They hear about 5,300 cases a year.

21 They've got 28 active judges and--I don't know--I

22 think about 17 senior judges and a lot of the

1 publication of those opinions really would create a

2 problem and I think most of the judges have written

3 to you about them. And I'm not going to mention

4 anything special except that I think the criticism

5 of its nonpublication rule is really not well

6 taken.

7 I'm going to put the Third, the Sixth, and

8 the Eight Circuits together because all three of

9 those circuits allow publication under certain

10 circumstances. As a matter of fact, I think in the

11 Third Circuit there really are no bars to it but to

12 tell you the truth, I have rarely if ever--well, I

13 have but I've rarely seen an unpublished opinion

14 brought to the attention of the court. The one

15 case that I do recall once in a while, and we do

16 get them once in a while, would be sentencing

17 guideline cases because many of those are

18 unpublished and probably should not be published,

19 except in the few instances where there's a new

20 twist to some of the guidelines.

21 In our circuit we had an absolute

22 no-publication rule except for limited exceptions,

1 like res judicata, and so forth, until 1994 and

2 then we put in this so-called persuasive rule. If

3 there's no case otherwise citable, you can cite an

4 unpublished opinion. Well, it hasn't caused any

5 problems and I haven't seen really, as I've told

6 you, much in the way of unpublished opinions. I

7 know there was one mentioned in the famous or

8 infamous Anatasoff case, and I won't go into that.

9 Well, I suppose you could say what's the

10 beef? What's the big deal? It's not causing any

11 problems. Well, let me tell you: Rule 32.1 trumps

12 the advice that we give not to cite unpublished

13 opinions. It really puts on the same level to the

14 appellate lawyer that he or she can cite an

15 unpublished opinion and it makes a difference to

16 us. Really while the argument made in an

17 unpublished opinion may always be repeated in a

18 brief, what the lawyers want is the imprint of

19 three judges on that opinion. And let's face it.

20 If we know that our so-called unpublished

21 nonprecedential opinion can come back, we've got to

22 take more care in writing. We've got to look over

1 it a lot more carefully. And I think the rule of

2 unintended circumstances may well apply, with the

3 result being that unpublished opinions will be

4 treated by lawyers, publishers and the academia as

5 part of the necessary research for making an

6 appellate argument and writing a brief, and I think

7 that's going to be more work for everybody.

8 Moreover, it forces the courts to change

9 their operations without their consent. And you

10 can bet the lawyers will seek out the unpublished

11 opinion that may contain language supporting their

12 views affecting briefing in appeals courts, as well

13 as trial courts.

14 Now listen. If all of the lawyers who are

15 going to appear in this committee were the quality

16 of the lawyers that appear before us, I wouldn't

17 worry about it because there wouldn't be an

18 unpublished opinion that would be cited unless it

19 was the rare case, but that's not true. The

20 quality of lawyers who appear in appeals varies in

21 sections, in circuits, and otherwise.

22 Now I really think that the adoption of

1 this Rule 32 and the opening up of four to five

2 times more cases possibly being cited than now is a

3 mistake and it's going to probably mean an

4 unintended circumstance, at least for me and I

5 don't want to do it because I like to say something

6 in my unpublished opinions. You know, we can say

7 just affirmed or enforced under our rule, I never

8 do that except in an unusual case. I try to give

9 the parties some reason and I think it could go the

10 other way. I would hope not but unless you're

11 going to increase judge power, law clerk power to

12 take care of the new problems that may well surface

13 under 32.1, I think we've got something that should

14 not be enacted.

15 I've served on this committee for a time

16 and I know that it's the tradition not to press for

17 a rule unless it has near unanimity for its

18 adoption. That's not so here. Almost all the

19 federal judges oppose the rule. In addition to the

20 judges, I know you have a lot of letters from

21 lawyers and I've sort of surveyed the appellate

22 lawyers in my circuit. Many of them would like to

1 have the rule or at least say well, I'd like a

2 national rule, just like we have it in the Eighth

3 Circuit, but recognizing the problems that it may

4 make for judges and for lawyers, there are many who

5 have said we don't think you need a national rule.

6 And let's face it. Most lawyers don't practice in

7 more than one circuit and there's no problem in

8 learning the rules of the circuit.

9 Well, what do I think? Let me give you my

10 views from a practical standpoint. Number one, if

11 it ain't broke, don't fix it. Number two, don't

12 open the door to a new rule unless you can clearly

13 see what's on the other side. And number three, I

14 echo Dean Patrick because soon and even now under

15 the E-Government Act of 2002, all written opinions

16 of the court will be on line.

17 Therefore, I think the proposed Rule 32.1

18 should be dropped and let each circuit deal with

19 this new E-Government Act and decide whether

20 changes in procedure are to be made in light of the

21 computer age and the E-Government Act. Anyway,

22 speaking of the computer age, I just came back from

1 computer school at age 85 and I wasn't the only

2 older judge there.

3 So anyway, Mr. Chairman and members of the

4 committee, thanks for your time and it's been a

5 pleasure. If there are any questions I'd be glad

6 to answer them and I'm going to give John a copy of

7 my extended remarks that yo can have in case you

8 want to refer to them. Thanks, John.

9 JUDGE ALITO: Thank you very much, Judge

10 Bright. Let me ask you a question to start out that

11 draws on your unique experience of having sat with

12 so many different circuits. I don't think any of

13 our other witnesses has had that experience.

14 You've sat with circuits that prohibit the citation

15 of unpublished opinions, circuits that have no

16 prohibition, circuits that limit the citation to

17 certain circumstances, I guess including your own

18 circuit.

19 I wondered if you have noticed any effect

20 that these local rules have had on either the work

21 of the lawyers or the work of the judges. We've

22 had conflicting comments from a variety of

1 commenters. We've had those who've predicted that

2 if Rule 32.1 is adopted many very serious adverse

3 consequences will occur. We've had others who've

4 said that if you look to the experiences of the

5 circuits that do not prohibit the citation of

6 unpublished opinions, there's really very little

7 evidence, if any, that this has had any major

8 effect either on the work of the lawyers or on the

9 work of the courts.

10 And I wondered whether you have noticed

11 that in the circuits where the citation of

12 unpublished opinions is allowed that when you are

13 preparing for an argument you have been burdened

14 with a great many citations to unpublished opinions

15 that don't seem to be well written or well reasoned

16 and whether this has materially, the knowledge that

17 the opinion will be citable when you're writing an

18 unpublished opinion, has made the process of

19 producing the opinion much more burdensome than it

20 is in the circuits that prohibit their citation.

21 JUDGE BRIGHT: I'm glad to answer that

22 question. I'm going to focus it right on your

1 circuit because I've been sitting there for a long

2 time, even before Judge Becker was chief, and he

3 and I have been close friends.

4 I have to say in all honesty there really

5 doesn't seem to be any difference. I've sat on the

6 Third Circuit. There may have been some

7 unpublished opinions that have been cited. I can't

8 remember them and I didn't pay any attention to

9 them if I could. And the same goes in every one of

10 the circuits--even the Eighth Circuit, the same.

11 But there's a difference and the big

12 difference is this. Right now every one of the

13 circuits has a warning--we don't want to hear

14 unpublished opinions but you can cite it if really

15 it's persuasive, something like the Eighth Circuit.

16 That's true, I think, in almost all the circuits.

17 It's certainly true in the circuits where I've sat

18 and they allow publication.

19 But if you're going to make it a level

20 playing field with this new rule, there's no longer

21 to be the deterrence. Sure, the court can say we

22 don't like you to cite them but the rule says you

1 can, but the main rule is going to put nonpublished

2 and published opinions as far as being in the

3 briefs on the same level. And if I were sure that

4 it wouldn't make any difference I'd say go ahead,

5 but I am not sure. I really think if you open the

6 doors, you're going to cause a problem. And if it

7 isn't a problem today, let's not change it.

8 Anything else?

9 MR. SVETCOV: Can I say you look terrific,

10 Judge?

11 JUDGE BRIGHT: Thank you. I tell you, I

12 stopped in to see the chief. We've been friends

13 for a long time. As a matter of fact, I always say

14 I was his token Democrat who went to his swearing

15 in as chief and also went to his party that evening

16 and I said to him, "You're looking good" and he

17 said to me, "You're looking good." Thank you.

18 Thank you very much. It's been a real pleasure.

19 JUDGE ALITO: Thank you very much.

20 JUDGE BRIGHT: By the way, John has a copy

21 of my extended remarks. Thank you.

22 JUDGE ALITO: Thank you. The Honorable

1 Diane P. Wood, United States Court of Appeals for

2 the Seventh Circuit.

3 STATEMENT OF THE HON. DIANE P. WOOD

4 JUDGE WOOD: Well, good morning to

5 everyone. I really do appreciate the opportunity

6 to be here to offer my thoughts on proposed Rule

7 32.1. The Seventh Circuit, as you know, is one of

8 the stricter circuits.

9 Both for the reasons explained in the

10 letter that a majority of judges of our court

11 submitted and for some additional reasons I'd like

12 to highlight this morning, I and most of my

13 colleagues oppose this proposed rule. On top of

14 that, I think the flaws are deep enough that I

15 don't think they would be cured by a further study

16 of this particular solution to the set of problems

17 the committee has been thinking about. So I urge

18 the committee to table this proposal indefinitely

19 and to continue to entrust the manner in which

20 legally binding precedent is developed to the

21 discretion of each circuit.

22 Now while it is an undeniable fact that

1 thousands of dispositions in the Federal Courts of

2 Appeals fall under the noncitation rules and I'm

3 going to try to call this a noncitation rule, some

4 80 percent of the matters terminated most recently,

5 the year ending 2003, it's far less clear that this

6 constitutes a serious problem. The committee note,

7 as I observed, and I looked at most of the comments

8 that had been filed, offers several reasons for

9 taking this action but I think each one can be

10 challenged.

11 One reason is that there's a need for

12 national uniformity with respect to citation

13 practices and that uniformity should be achieved in

14 the direction of liberalizing citation practices

15 instead of the opposite direction.

16 Second is a reason that I'm thinking of as

17 something like a truth in labeling requirement.

18 The present orders, memoranda, and so forth are out

19 there. They're produced by the circuits. Why

20 pretend they aren't out there? You know, it seems

21 that if they are out there and they're real

22 decisions of real courts, we ought to treat them

1 that way.

2 A third reason is that we ought to prefer

3 a more open system in which there are no limits on

4 materials that counsel or the parties can call to

5 the court's attention--I suppose if it were a pro

6 se case--at least when, as is asserted to be the

7 case, there's very little cost to doing so.

8 And the fourth was a comment that this

9 rule change would lighten the burden on attorneys,

10 who have to decipher every circuit's citation

11 rules.

12 Let me address these points one at a time

13 but I want to begin with something that seems to me

14 like a dog that's not barking. No one I think

15 anymore is seriously arguing that proposed Rule

16 32.1 is necessary to counter an impression that

17 there's some secret law of the circuit hidden away

18 in so-called unpublished orders. That story simply

19 cannot hold water in the 21st Century court system.

20 As Judge Bright just commented, as you

21 certainly are well aware, whatever discrepancies

22 there may have been in that regard are soon to be

1 cured by the E-Government Act, which assures that

2 every court of appeals will put everything on its

3 website. In fact, in the Seventh Circuit we've

4 been doing that for years. That means that with

5 free Internet access--maybe you'll go to the public

6 library or whatever--every last word coming out of

7 the Courts of Appeals is available to anyone with

8 the skill and the access to navigate these free

9 websites, both inside and outside the judiciary.

10 For those with the resources to use Westlaw or

11 Lexis, access is even easier. So we're not talking

12 about a secret law problem.

13 The discussion we're having today deals

14 solely with the question whether each and every

15 publicly available decision of the courts may be

16 raised in submissions to those courts in support of

17 the litigant's position. So let me turn to these

18 arguments and just run through them briefly.

19 What about the hardship point? Well, it

20 was first quote notable to me that quite a few

21 distinguished members of the bar who submitted

22 comments to this committee flatly disagreed with

1 that prediction. They pointed out the circuit

2 rules aren't really that hard to find. They're on

3 the websites, too. All you have to do is click

4 over to the website and you can see everybody's

5 local rules. And no responsible appellate lawyer

6 is going to omit checking out the local rules just

7 because of publication versus nonpublication.

8 There are too many others rules you have to look

9 at.

10 Most importantly, I think, just as we

11 suggested in our comments from the Seventh Circuit

12 judges, attorneys from private firms, from public

13 interest groups, and others think that the true

14 hardship is going to come from the need to deal

15 with this enormous body of decisions that are

16 presently designated for nonpublication.

17 It reminds me a little bit of one of my

18 favorite scenes from a movie. I'm a big Indiana

19 Jones fan and as you may remember, the very last

20 scene of "Raiders of the Lost Ark" deals with the

21 question where are they going to hide the ark?

22 Where are they going to keep it where it's

1 absolutely safe? And you see some men trundling it

2 down on a hand cart in an enormous warehouse in

3 some--I always think of Suitland out here in

4 Maryland, but they're hiding it in the midst of

5 this giant mass of boxes and I have a feeling that

6 the worthwhile things are going to be hidden in a

7 similarly huge mass of cases.

8 This 80 percent number is a worthwhile

9 number to think about. By adding these noncitable

10 dispositions to the body of law a competent lawyer

11 will want to look at, the research load for the

12 lawyer will increase some fourfold. If clients are

13 paying for the hour their bills will go up. It

14 will hit the poor and the middle class and I think

15 it's hardly the direction we want to take when

16 we're really worried about the spiraling cost of

17 litigation. So it would be worth it if

18 there were some marginal benefit but I suggest

19 there is very little marginal benefit.

20 If you're having trouble sleeping some

21 night let me recommend that you sit down and read

22 two or three weeks worth of the Seventh Circuit's

1 unpublished and noncitable orders, the orders that

2 say "Do not cite; see Circuit Rule 53," every one

3 of which I assure you I read. You will find

4 prisoner cases where the prisoner failed to allege

5 that a prison official acted with the necessary

6 malice to make out an Eighth Amendment violation.

7 You'll find Social Security cases where we say,

8 "Yeah, the administrative law judge had substantial

9 evidence to rely on, so we're affirming the

10 disposition." You'll find immigration cases where

11 we say the same thing.

12 You'll find employment cases where the

13 plaintiff failed to make out one element of the

14 McDonnell-Douglas prima facie case, adding to the

15 mountain of McDonnell-Douglas cases that are out

16 there. And you'll find Anders brief after Anders

17 brief after Anders brief where the order rehearses

18 why counsel has correctly concluded that this

19 appeal is absolutely without merit and so we grant

20 the motion to dismiss the appeal.

21 Each of these orders typically includes a

22 discussion of some basic standards of law. It

1 might be the standard of review. It might be basic

2 principles of administrative law if it's a Social

3 Security case or an immigration case. It might be

4 basic principles about employment discrimination

5 cases, whatever it may be. In the Anders briefs we

6 might have a little section explaining why a Fourth

7 Amendment challenge would be an utter frivolity, so

8 you talk about that.

9 These are principles of law that would

10 apply in a meritorious case but they're just

11 rehearsed for the benefit of the parties in these

12 orders, as we call them. So I think they would do

13 nothing but clutter up the research of someone

14 faced with a genuine issue in one of these areas.

15 All right, so that gets me to the point

16 that I think it would be a fallacy to think that

17 this rule would be cost-free from the standpoint of

18 courts. I know a lot of commentators have pointed

19 out to you that the effort in the rule to draw a

20 distinction between something that's citable and

21 something that's precedential is perhaps based on

22 unrealistic hopes and I think that that's quite

1 right.

2 If the cited order is the work product of

3 our court, if we have to study the facts to see if

4 they're distinguishable from the case presently

5 before us, if we should either follow the precise

6 formulation of the rule of law or explain why we're

7 not doing so, in sort, if we really have to treat

8 this thing as a full-fledged precedential opinion

9 of the court, then it is a full-fledged

10 precedential opinion of the court. You know the

11 old saying--if it walks like a duck and quacks like

12 a duck, and so forth.

13 It is and it's hard for me to see how if I

14 was looking at one of these endless

15 McDonnell-Douglas unpublished orders, which by the

16 way in our court come when it's a pro se appellant

17 because we give oral argument and publish in every

18 single case where there's a lawyer on both sides,

19 then it's just not something that's going to be a

20 very fruitful process for us.

21 So I also would point out with this vastly

22 increased pool of cases, the chances of both

1 intracircuit conflicts are magnified and

2 intercircuit conflicts. Intracircuit conflicts

3 will place an extra burden on the en banc courts.

4 Intercircuit conflicts may have the undesirable

5 effect of bloating the Supreme Court's certiorari

6 docket.

7 Now as Judge Bright certainly pointed out,

8 I think there can be no denying the fact that the

9 workload on judges will increase. I don't think

10 any of us around this table thinks judges are being

11 lazy right now or underworked, so that's something

12 to be concerned about, as well. Resources are

13 shrinking for the judiciary, not expanding, and I

14 think that's a point to remember.

15 Recall--actually, this is way back in the

16 day when I was a law clerk in the Fifth Circuit.

17 Judge Griffin Bell at that time was taking the lead

18 on the Fifth Circuit, which in those days was the

19 old Fifth Circuit, all the way over to Florida, in

20 creating the innovations, then innovation in the

21 mid-'70s to which Judge Bright referred--case

22 screening, decisions whether oral argument should

1 be given in various cases or not, and this was

2 because the caseloads were really starting to

3 explode around the country.

4 We thought it was bad then. I compared

5 the number of cases my judge, Irving Goldberg of

6 the Fifth Circuit had decided the year I clerked

7 for him with the cases I had the first year I was

8 an appellate judge on the Seventh Circuit and it

9 was more than doubled. I thought, "Boy, I thought

10 I was working hard." That would be the reason.

11 There's just more out there.

12 So I don't think the need for effective

13 docket management has decreased since Judge Bell's

14 day; it has only become more severe.

15 Now let me quickly move--I know the

16 committee has lots of people to hear. I think

17 truth in labeling sounds like a good idea but in

18 some sense no one is pretending that those opinions

19 aren't out there. What we're saying instead is

20 these opinions, these orders, unpublished,

21 uncitable documents, are routine applications of

22 routine principles of law with explanation for the

1 benefit of the parties. That's a good thing to do.

2 The parties deserve to hear from us, the judges,

3 why they win or why they lose. We are not arbitral

4 tribunals and indeed arbitral tribunals sometimes

5 explain, as well. We're public courts and we

6 should tell the parties why they win or lose.

7 Otherwise, as my Chief Judge Joel Flaum likes to

8 say, we're going to look like the Emperor Nero

9 going out with a thumb's up or a thumb's down and

10 seeming just as arbitrary as I guess we all assume

11 that particular emperor was. So I'm going to come

12 back to another point in a minute.

13 Let me spend just an extra minute on the

14 uniformity point. This is a very serious issue.

15 Sometimes uniformity is a good thing but sometimes

16 it can be used to stifle local experimentation. I

17 think of the Supreme Court's constant praise for

18 using the states as laboratories for innovation.

19 The same thing is true of the circuits in many

20 ways. Note it was a circuit--it was the Fifth

21 Circuit that began to develop the tools on which we

22 all rely today.

1 On top of that, a superficial uniform rule

2 superimposed on extremely different circumstances

3 is not going to produce uniform results. It's

4 going to produce dissimilar results because, as it

5 were, the data that feeds into it is going to be so

6 different.

7 Now a lot of people have already commented

8 and everybody here knows that the 13 circuits vary

9 tremendously. They vary in geography, caseload.

10 We have one specialized circuit, the Federal

11 Circuit. The D.C. Circuit has its own unique

12 aspects. And they differ in myriad other ways.

13 That's obviously true. That alone is enough to

14 counsel caution, I think, in assuming that we have

15 a one-size-fits-all situation.

16 But there are some other ways that I think

17 we also want to pay attention to variations in the

18 circuits. These include allocation of cases to the

19 oral argument docket versus the nonargued docket,

20 the percentage of cases that are resolved by a

21 published, fully precedential opinion, and the use

22 of various summary disposition techniques. These

1 are incredibly different among the circuits.

2 Let's deconstruct this 80 percent number I

3 referred to a minute ago. The AO says that out of

4 some 27,000 opinions or orders filed in cases

5 terminated on the merits, and these statistics weed

6 out very routine jurisdictional dismissals for the

7 people who waited 120 days to file their notice of

8 appeal or something like that, it's about 80

9 percent unpublished. Then they divide it up into

10 other categories--written signed dispositions,

11 written reasoned and unsigned, and written reasoned

12 and no comment. Then within each of those

13 categories they say, "How many are published? How

14 many are unpublished?"

15 The variations among the circuits are

16 enormous. The Second Circuit, for example, had a

17 total of almost 2,000 opinions or orders of all

18 kinds. The published 438 written signed opinions.

19 1,451 were unpublished, written and signed opinions

20 and 45 were published, written and unsigned. Now

21 they don't use written and unsigned without comment

22 at all.

1 In the Seventh Circuit, as I mentioned a

2 minute ago, our practice is completely different.

3 In our case a written, signed opinion is a synonym

4 for a published opinion. We don't do it the other

5 way. Zero of our written and signed opinions were

6 unpublished. And out of our total of 1,404 cases,

7 581 were published, written and signed, zero

8 unpublished, written and signed. And in the

9 unsigned opinion group, which is our orders, 22

10 were published written explanations and 765 were

11 unpublished.

12 You could go through--you'll have the

13 statistics available to you with the charts and

14 there are enormous differences among the circuits.

15 The same differences show up when you look at the

16 total percentage of unpublished opinions by a

17 circuit. And here, of course, we're using

18 unpublished in the specialized way we're talking

19 about it.

20 In 2003 the Fourth Circuit had the highest

21 percentage at 91 percent. The lowest percentage

22 was the First Circuit at 39 percent, a difference

1 exceeding 100 percent. So the instinctive reaction

2 of somebody who practices in the First Circuit

3 might be, "What's the big deal?" The pool of

4 precedential published opinions in that circuit is

5 vastly larger than the pool.

6 So I think in answer to the question that

7 Judge Alito posed to Judge Bright, what's the

8 difference among the circuits, I think part of it

9 is that underlying practice of how much is out

10 there to be looked at may be linked--in fact, I'm

11 certain it is linked in some ways to that circuit's

12 rule about the use of noncitable dispositions.

13 The Seventh and the D.C. Circuit, as it

14 happens, were the same on this. We each had 57

15 percent of our opinions unpublished--quote-unquote.

16 The Eleventh and the Fifth Circuits were up at the

17 87 percent level. These are big differences.

18 So while on the one hand the Seventh

19 Circuit has one of the more restrictive rules

20 regarding citation, on the other hand, a far

21 smaller percentage of our docket is being put in

22 the order category and thus noncitable. Even

1 though we're a small circuit and I'm sure one can

2 speculate about why this is true, in absolute

3 numbers we had the third largest number of written,

4 signed and published opinions int country. The

5 Ninth Circuit had 777. Not surprising that they

6 would have the most. The Eighth Circuit had 648

7 and we had 581. No one else exceeded 500 in the

8 statistical year ending September 30, 2003.

9 So I think you need to look at the full

10 picture in each circuit. In other words, you can't

11 just sort of pluck out the published opinion rule

12 and say let's do something with that without

13 realizing that it's a function itself of the

14 circuit's practices and cultures on oral argument,

15 on publication, on other matters that lead into

16 this.

17 My point, I stress, is not that I think

18 there's any magic percentage of publication for any

19 circuit. I think it's up to each circuit to decide

20 what it wants to do. I'm very happy in our circuit

21 that we do give oral argument in every case where

22 there's a lawyer on both sides. I think that's a

1 useful practice. And in cases where there is no

2 lawyer if one judge thinks that the case deserves

3 fuller treatment, we importune or appoint or in any

4 other way, hijack a lawyer into representing the

5 party. Sometimes it hash to be an amicus.

6 So let me suggest a different strategy

7 that might address the rare situation where a panel

8 has erred in designating something for

9 noncitability. Most circuits--maybe not every

10 circuit, but I found similar rules in most

11 circuits--have rules that address that problem,

12 rules that allow someone to change the designation

13 of a particular order from unpublished and

14 uncitable to published. In the Seventh Circuit,

15 which has an extremely liberal rule, local rule

16 53(d)(3) provides that any person may request by

17 motion that a decision by unpublished order be

18 issued as a published opinion. The First Circuit

19 local rule 36 is similar, although it refers to any

20 party or other interested person, so it's a little

21 more restrictive than ours and it does specify that

22 good cause must be shown. The Fourth Circuit has

1 an even stricter rule, giving the right to make

2 such a motion to counsel, and the Fifth Circuit

3 allows any judge of the court or any party to make

4 such a request.

5 My suggestion is that if there's serious

6 concern that the occasional noncitable order was

7 misclassified as something that merely applies

8 existing law and instead it really does advance the

9 law somehow, then maybe we ought to look at this

10 error correction device that's a much more targeted

11 device. I can't even remember sitting on panels of

12 the Seventh Circuit when we have denied such a

13 motion. We grant them with extraordinary

14 liberality.

15 Now I'm sure if CNN came in and said we're

16 hereby filing a motion to publish everything, we

17 wouldn't--I mean that's not the point of this rule.

18 That would take us right back to proposed Rule

19 32.1. But that's not how it happens and if a

20 lawyer who is preparing a brief in a case runs

21 across an unpublished disposition that seems to

22 fall in this category, they can make a motion. You

1 don't have to be linked to the case. You don't

2 have to be anything. You can just be a concerned

3 citizen.

4 Maybe you're a person who practices a lot

5 in the Social Security area. That was one such

6 case I remember, where we thought we had done

7 something extremely routine, we issued it as an

8 unpublished order. We got a motion from somebody

9 who I know has an active Social Security practice

10 in Chicago, not a lawyer in the case, who said

11 you've actually said something that nobody's really

12 said before; would you please publish it? We said

13 sure. We reissued it as a published opinion and

14 now it's out there.

15 So that, I think, is the better way to go

16 if there is a concern that in this vast ocean of

17 orders floating out there, most of which, as I

18 said, are quite routine and not really worthy of

19 citation, let's do that instead. I think proposed

20 Rule 32.1 goes the wrong way. I urge the committee

21 to abandon this route and leave things as they are

22 for now. Thank you.

1 JUDGE ALITO: Thank you, Judge Wood.

2 Any questions?

3 MR. LETTER: I found your comments very

4 thoughtful and you've obviously given this a lot of

5 consideration and, as I say, very thoughtful. I

6 had a couple of questions for you.

7 From a practitioner perspective I had a

8 situation not long ago in one of the circuits that

9 doesn't allow citation of unpublished orders. I

10 found about four or five unpublished orders

11 dismissing a particular kind of interlocutory

12 appeal. These orders were all issued within about

13 a two-year period. There were no published

14 opinions on point, which is sort of not surprising.

15 This was simply a procedural issue on an

16 interlocutory appeal.

17 As I was looking at that, were I a judge,

18 I would very much want an attorney to be able to

19 give me that information and tell me that by the

20 way, in the last several years your same court has

21 dismissed four or five of these. Does that worry

22 you? Aren't you frustrated that you cannot get

1 that kind of information from the attorneys? Or is

2 the answer your law clerks will find it and you

3 don't need the attorneys, anyway?

4 JUDGE WOOD: Well actually, my answer is a

5 third one, which is that certainly in the Seventh

6 Circuit if you found those, all you'd have to do is

7 file a motion to make the best one or a couple of

8 them published and that would be a way of calling

9 it to our attention.

10 MR. LETTER: Although I often find I

11 discover these probably about a week before the

12 brief was due. I think that's probably very

13 standard among attorneys. You don't find these

14 things six months in advance.

15 JUDGE WOOD: Right. Maybe you practice in

16 circuits where the bar doesn't use the opportunity

17 to file supplemental authority requests as often as

18 we see them. I see them on the morning of oral

19 argument not uncommonly, so I really question

20 whether if you found it a week before you wouldn't

21 have any way of getting it to our attention.

22 We, in fact, in that kind of situation,

1 even if we're doing an interlocutory order, if it's

2 something like that--suppose we don't think

3 mandamus is the right vehicle or something like

4 that--we're as likely as not to publish that

5 opinion. That's the first thing we talk about--is

6 this anything that's out there? And if we've made

7 a mistake, in our circuit you should call it to our

8 attention and I think that would solve your problem

9 altogether.

10 The other thing is in terms of that, I

11 think the judges probably do know what their

12 practice is on interlocutory orders but if they

13 don't, there are ways without opening Pandora's box

14 to address the particular situation you're talking

15 about. Make a motion to publish.

16 MR. LETTER: The second is are you

17 troubled by the fact that--and here I understand

18 your practice--your meaning the Seventh Circuit's

19 practice--may be different from the other three

20 circuits that have similar rules--are you troubled

21 by the fact that your unpublished decisions

22 actually are citable and cited in almost every

1 other federal court in the United States? Most of

2 the circuits and virtually every district court,

3 your unpublished opinions can and are cited. I see

4 district court briefs all the time and they

5 routinely cite unpublished court of appeals

6 opinions.

7 So, as I say, does it trouble you that

8 your court is in this tiny, tiny minority when

9 actually these opinions are widely cited and

10 citable, perfectly proper within the rules? Does

11 that give you concern?

12 JUDGE WOOD: Well, I guess my reaction to

13 that--actually, the approach we take to citation of

14 other circuits' opinions in our court is to follow

15 what that other circuit's rule is. So if it's a

16 circuit that has a very liberal citation rule,

17 fine. In a way it's like res judicata. You know,

18 you give the same weight that the issuing court is

19 going to give to it, so we do the same thing with

20 citation practices.

21 Our responsibility is for the development

22 of the law of the Seventh Circuit and if somebody

1 else is off in some other place citing an

2 unpublished order of ours, I just have to trust

3 that the readers will give it what weight they wish

4 to give it. It's not the law of the circuit and it

5 could be misleading. That's not a good thing and

6 that's what we're trying to signal by having

7 emblazoned across the top of the page, "Not to be

8 cited, unpublished order," but I don't have any

9 power to tell the other circuits what they want to

10 have or not. So I regret that it's misleading but

11 I can't really do anything about it.

12 MR. LETTER: And the last question is do

13 you have concerns that, for instance, in this

14 current term of the Supreme Court, there are at

15 least five that I found and there may be more of

16 the Supreme Court's docket are reviewing

17 unpublished court of appeals decisions? So these

18 are decisions that in particular courts could not

19 even be cited to those courts and yet they are the

20 subject of Supreme Court review. And, in fact, one

21 of them, I think, took up 50 pages in the printed

22 appendix that was filed with the cert petition.

1 So the Supreme Court has at least five and

2 maybe more of those this term. I was wondering

3 does that trouble you at all?

4 JUDGE WOOD: You're talking about

5 something very near and dear to my experience. I

6 don't know if you remember a few terms ago the Kilo

7 case having to do with whether thermal imaging is a

8 search, but that was a petition for cert granted

9 from an unpublished order of the Seventh Circuit,

10 on which I happened to be on the panel.

11 Now why did we decide that--in fact, they

12 reversed. The reason our order was unpublished was

13 because we had had exactly the same issue in the

14 Seventh Circuit not two years before; we had issued

15 a fully reasoned published opinion saying that we

16 thought that thermal imaging was not a search.

17 That opinion is cited throughout the unpublished

18 order. In fact, the only thing the unpublished

19 order really says is, "Here are the facts. We

20 think this is squarely governed by this earlier

21 case," because nobody on the en banc court wanted

22 to hear the earlier case back when it was issued.

1 It was the law of the circuit and we were bound to

2 it.

3 So the Supreme Court, for whatever

4 reason--as we know, they have many reasons for

5 taking cases or not taking cases at the time

6 petitions for cert are presented--the Supreme Court

7 didn't take the earlier case. So anyone who wanted

8 to know the position of our circuit had only to

9 read the unpublished order, see what was the

10 published precedential opinion on which it relied,

11 and they were fully aware of what it was.

12 The Supreme Court chose to take the later

13 case. They reversed. They said no, actually

14 thermal imaging is a search, it's not just

15 something that's out there. And it didn't bother

16 me at all, to tell you the truth, because in

17 keeping with my obligation to follow the law of the

18 circuit, to have to keep publishing the same thing

19 over and over again when it's really just governed

20 by this thing is crazy.

21 MR. LETTER: I'm not talking about

22 publishing. The question is citation.

1 JUDGE WOOD: But I don't buy that there's

2 a difference. I think citability and precedential

3 value are inseparably linked. And, as I said, in

4 the Seventh Circuit for certainly as long as I've

5 been on the court there has never been any such

6 thing as an actual unpublished opinion. We've

7 never had a situation where somebody had to march

8 into the clerk's office and pick up a copy of it.

9 We've had a very active website for a very long

10 time, so it was all available, a least for people

11 with computers it was available, and Westlaw has

12 picked them up--I can't even remember, but

13 certainly for a very long time.

14 MR. LETTER: Thank you.

15 MR. LEVY: Let me follow up briefly, if I

16 might, on Doug's first set of questions. Do I

17 understand correctly that motions to publish a

18 previously unpublished decision can be made years

19 after the issuance of the opinion? And about how

20 long would it take the court to act on such a

21 motion?

22 JUDGE WOOD: I think there's no time

1 limit. I'm trying to think what the times have

2 been when I've been faced with those things and

3 certainly I can remember a year in one case. It's

4 not like within the time for a petition for cert or

5 any such thing. I suppose at some point it's not

6 really very interesting anymore because the court's

7 probably moved on in whatever the area is but

8 there's no specific time limit on it. We generally

9 act on it pretty quickly.

10 When I get a motion like that obviously it

11 goes to the panel but the authoring judge will have

12 the leading oar on that. I'll consult my panel.

13 I'll go back and take a look at it because if I'm

14 going to turn it into a published opinion, I want

15 to make sure it's right. You know, I go through

16 that extra process that Judge Bright was talking

17 about just to make sure that I haven't

18 inadvertently misstated the McDonnell-Douglas test

19 or done something silly, you know, that I shouldn't

20 have done.

21 So I don't think there is. I've never

22 seen one that was like five years late but I think

1 within a fairly reasonable range there's no time

2 limit.

3 JUDGE ROBERTS: First of all, Judge Wood,

4 thank you very much for coming and visiting with us

5 and I want to second your point that judges are not

6 lazy and underworked. I think there's no dispute

7 about that.

8 JUDGE WOOD: None of at the table, right?

9 JUDGE ROBERTS: But I want to focus a

10 little bit on a tension that I see in the arguments

11 against the proposed rule that on the one hand,

12 these--I don't really know what to call them--the

13 unpublished, the noncitable, whatever, opinions are

14 not worth very much; they just sort of apply

15 existing law to the specific parties. And then the

16 other argument that well, if you allow the citation

17 of them, lawyers are going to have this extra

18 burden of going and looking at them and judges are

19 going to have to look at them.

20 Traditionally I think in our adversary

21 system we allow disputes about the value of citable

22 materials to be resolved by the lawyers in the

1 exercise of their professional judgment in the

2 interest of their client and let the judges decide

3 whether we think that's worth anything, whether

4 it's an opinion from another circuit, a district

5 court opinion, a student comment in a law review.

6 And a lot of the arguments seem to focus on the

7 quality, the merit, the worth of the noncitable

8 precedents but not so much on the solution of not

9 allowing them to be cited and I wondered if you

10 could address why that is the best solution, as

11 opposed to, for example, many of the circuits have

12 discouraging language saying you should realize we

13 don't take these very seriously.

14 You know, my experience over the last 10

15 months, I think I've seen non--whatever we call

16 them--nonprecedential memoranda, whatever, probably

17 twice. Two different times I've seen that cited,

18 even though it's freely citable in our circuit,

19 because the lawyers know the judges aren't terribly

20 impressed by it.

21 On the other hand, as a lawyer I've had

22 situations where that is the exact case. It's a

1 year ago. Maybe two of the judges are on the same

2 panel. However basic the proposition, in my

3 professional judgment this is what I want that

4 court to know on my client's behalf and I found it

5 frustrating to have a rule saying you can't do

6 that.

7 So it's a long wind-up but focus on the

8 problem that the rule's addressed to, which is the

9 noncitability, even agreeing whatever you want to

10 postulate as to how valuable or invaluable all of

11 that body of law is.

12 JUDGE WOOD: Well, I have a couple of

13 reactions. I don't want to sit here and say that

14 there's absolutely no wheat among this chaff

15 because there probably is and, as I said, I think

16 that our device for catching it is one that works

17 pretty well. There is a sorting process for the

18 lawyers to find that one case, wading through all

19 of those on the whole, as I said, to be quite

20 honest, incredibly boring unpublished noncitable

21 orders that we issue--boring only in the sense that

22 they're so repetitive after a while, not, of

1 course, to the parties whose case it is.

2 So I worry from the point of view of the

3 lawyer who is trying to persuade the court to do

4 something feeling an ethical obligation to conduct

5 that sorting process. Lawyers, as you know, as

6 Judge Bright said, are of vastly different

7 abilities and some lawyers are not going to be as

8 discriminating as you would be, I am confident. We

9 read briefs like this all the time.

10 In fact, sometimes that factual match is

11 so misleading. You know, it's not really the legal

12 principle that's at issue in the case. Maybe the

13 case is in a different posture. Maybe it's a

14 somewhat different set of problems that are before

15 us.

16 And I think what we're touching on is

17 actually a very delicate area for the federal

18 judiciary, which is the fact that in a case--for

19 courts like the intermediate courts of appeals in

20 the federal judiciary, just as for most state

21 intermediate courts of appeals, we perform two

22 functions. We're usually performing the function

1 in our compulsory jurisdiction of error review

2 where we're looking at a particular case to make

3 sure the district judge got it right. District

4 judges usually do get it right, number one.

5 And number two, when we're doing that

6 there's real law out there. We all apply it the

7 same. I tell people you can pick any random panel

8 you want of the Seventh Circuit and we will agree

9 on 90 percent of the cases. It's just that clear.

10 So that's our error correction function

11 and I think there's a pretty close correlation

12 between the things that wind up as these noncitable

13 orders and at least a subset of the cases that are

14 applying that. Somebody said how many times do you

15 need to read the proposition that when a criminal

16 defendant calls up a witness and threatens him

17 before the trial, that an obstruction of justice

18 enhancement is appropriate under the sentencing

19 guidelines? We know that. This is not a

20 proposition that is subject to serious debate. And

21 lots of appeals, given the draconian sentences that

22 people get, are of that nature.

1 Or did the district court clearly err when

2 the court decided not to give an acceptance of

3 responsibility adjustment? It's a pretty

4 straightforward thing.

5 So again yes, there's a little bit of

6 wheat. How do we find it? How do we solve this

7 problem? If you really feel that to represent your

8 client properly you need to call that to the

9 court's attention I think jettisoning the ability

10 of courts to separate out that second group of

11 cases, the group of cases for the real development

12 of the law, is a vastly over-inclusive solution to

13 the problem.

14 JUDGE ALITO: I wondered if I could get

15 your reaction to a comment that was made by one of

16 your colleagues who submitted a comment in support

17 of the proposed rule, and that is that this is

18 basically an empirical question. Even given the

19 variations in the circuits that you pointed out,

20 would it not still be possible to do a systematic

21 study of the effect of no-citation rules or the

22 absence of no-citation rules in the various

1 circuits?

2 And if it would be possible to do such a

3 study and if such a study were to show that the

4 adverse consequences that have been predicted have

5 not materialized in the circuits that permit

6 citation, do you think that you and your colleagues

7 who have written in opposition to this proposed

8 rule would feel that that merited reconsideration

9 of their position?

10 JUDGE WOOD: Well, I'm certainly familiar

11 with the colleague in the letter to which you refer

12 and in a world of unlimited resources, how could I

13 be opposed to one more empirical study? I think a

14 study would have to be constructed very carefully

15 to adjust for the differences I was talking about

16 because if the circuit, in fact, just to use rough

17 numbers, has as fully precedential published

18 opinions fully half of its output, it's doing

19 something different than a circuit that has only 20

20 percent of its output that way. And I think some

21 very sophisticated techniques would need to be

22 brought to bear to make sure that one was not, in

1 fact--you know, if you ask the wrong question

2 you'll get the wrong answer and that's a risk that

3 I think is a serious one in such a study.

4 Now having said that, I think that I also

5 want to throw into the hopper the fact that the

6 states have vast experience with this, as well.

7 Most of the states--I think it's still a numerical