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
2
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
3
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
4
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.
5
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
6
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
7
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,
8
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
9
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
10
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
11
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
12
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.
13
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
14
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,
15
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
16
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
17
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
18
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
19
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
20
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
21
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
22
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
23
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
24
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
25
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
26
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
27
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
28
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
29
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
30
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
31
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
32
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
33
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
34
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.
35
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
36
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.
37
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
38
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
39
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
40
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
41
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
42
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.
43
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
44
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,
45
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
46
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
47
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.
48
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.
49
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.
50
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
51
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
52
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
53
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
54
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
55
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
56
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.
57
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
58
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
59
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
8
majority of the states have restrictions on
9
publication of opinions of their intermediate
10
appellate courts. I know I
checked in our circuit
11
and all three of the states in our circuit do.
12
They each have particular criteria for their
13
intermediate appellate courts to publish opinions.
14
Some states may have no restrictions whatsoever and
15
if you're thinking of a study, maybe that's
16
actually a better way to control for these
17
differences than looking at the various Courts of
18
Appeals would be. I'm not sure.
19 I doubt actually in the final analysis
20
that if I were to be told that a complete free
21
market for citability was out there I would still
22 think it was worth having a fourfold increase
in
60
1
the number of potentially citable things out there
2
on a nationwide basis but, as I said, I think it
3
really depends. It's a resource
question and it's
4
also a question of whether this is the most burning
5
problem on your docket or whether there are other
6
things that you might wish to put those resources
7
to. But any such study would
have to be very
8
carefully constructed.
9 JUDGE STEWART:
Just as a follow-up,
10
doesn't your answer suggest, though, that--I mean
11
assuming the study's done and it unquestionably
12
shows a lot of these workload burden notions that
13
have been put out here don't prove out, that the
14
opposition to the rule still really boils down to
15
sort of the way you've characterized it, as
16
citability and precedential are linked?
I think
17
that's an interesting term of art and in reading
18
all the comments, I don't see that as a predominant
19
viewpoint but that's another issue.
20 Isn't it really more the self-governance
21
notion? In other words, saying
if a ton of
22
evidence from the study came to show that all these
61
1
workload notions just don't prove out, don't you
2
allow for the fact that you and perhaps your
3
circuit would be opposed to the rule simply because
4
it cuts into the self-governance and this merging
5
of citability? Because you cite
in support of the
6
position you take about potentially increasing the
7
Supreme Court's cert docket and intracircuit--I
8
mean with all due respect, I don't see how that's
9
quantified or there's any data to really back that
10
up.
11 So I mean at bottom, isn't there really
12
sort of a philosophical disagreement with this rule
13
based on the premise of citability and precedential
14
merged together and kind of a notion of
15
self-governance?
16 JUDGE WOOD:
Well, I certainly think that
17 I
and my colleagues do think that a certain amount
18
of self-governance in each circuit is appropriate
19
since the circuits are, in fact, so different and
20
there are so many things--just to give you an
21
example, the Seventh Circuit never sits a week at a
22
time. We have a different panel
every day. I sit
62
1
every week of every month. We're
very
2
geographically compact. Somebody
hops on the train
3
in South Bend or Milwaukee, travels 90 miles and
4
they're in Chicago. That doesn't
look at all like
5
the Ninth Circuit.
6 The reason, actually just for the record,
7
that I said what I did about intracircuit
8
conflicts, I actually do think we have a certain
9
empirical base for because the larger circuit, such
10
as the Ninth Circuit with a vastly greater number
11
of dispositions of any type each year, do have the
12
risk of more intracircuit conflicts.
13 We all try, of course, to avoid those but
14
when there are that many more cases out there, are
15
you really going to remember every last thing,
16
every last nuance of every panel?
I think it's
17
humanly very difficult to do.
18 So my sense is just if you quadruple or
19
quintuple the number of dispositions out there this
20
is, in fact, a serious risk, both within circuits
21
and for the country as a whole.
22 So it does partly get down to what you
63
1
think we're doing, whether you think we're
2
focussing on self-governance and the like, and how
3
we want to develop the law.
We're responsible for
4
the development of the law at the circuit level
5
until the Supreme Court tells us we're wrong, of
6
course, and if we think that focussing on the
7
opinions that receive that full process that Judge
8
Bright was talking about are the ones where we want
9
to develop it, then maybe we should do that. I
10
think that's certainly been my position.
11 One thing I didn't stress in my oral
12
remarks but certainly was in the letter that the
13
rest of us on the Seventh Circuit submitted to this
14
committee is the fact that in our circuit the
15
process that yields a published precedential
16
opinion is considerably more elaborate than the
17
process that yields an unpublished noncitable
18
order. A published opinion is
almost invariably
19
the result of oral argument and everything that
20
that entails--you know, public discussion with the
21
lawyers, an opportunity to explore whatever the
22
issues may be, the ability to deliberate with one's
64
1
colleagues--whereas our unpublished orders are
2
those where we decide in conference, obviously
3
still panels of three judges, with the assistance
4
of the staff attorneys. I don't
want to be here
5
saying that I think our staff attorneys do a bad
6
job because I don't think so.
Actually I think
7
they do an excellent job and we're responsible,
8
anyway. I don't want to be in a
position of saying
9
that here's this second-class work product. But it
10
is not as elaborate a procedure.
It's a devil's
11
deal that we've all made for the last 30 years
12
because of the incredible workload.
13 If you don't get oral argument--we
14
probably have all had the experience in oral
15
argument that somebody every so often says
16
something that you really didn't realize was in the
17
case, that makes you understand that the issue is a
18
narrower issue or a broader issue or the facts were
19
not really adequately portrayed in the person's
20
brief, and we pick up all that in our published
21
opinions and we don't necessarily--obviously
22
there's some risk of errors in these pro se
65
1
rambling, disjointed things that are presented to
2
us and we make the best of it that we can and come
3
out with an unpublished order.
So they really do
4
strike me as two different kinds of things, in the
5
end.
6 JUDGE ALITO:
Any other questions?
7 Judge Wood, thank you very much. We
8
appreciate your coming very much.
9 JUDGE WOOD:
Thank you.
10 JUDGE ALITO:
Richard Frankel.
11 We're running quite a bit late and I would
12
appreciate it if the witnesses would try to keep
13
their prepared remarks to about 10 minutes, to no
14
more than 10 minutes, so that we have ample time to
15
follow up with questions from the members of the
16
committee.
17 Mr. Frankel, thank you for coming.
18 MR. FRANKEL:
My remarks run a little bit
19
longer so feel free to tell me to stop.
20 JUDGE ALITO:
Okay.
21 STATEMENT OF RICHARD FRANKEL
22 MR. FRANKEL:
My name is Richard Frankel
66
1
and I'm here on behalf of Trial Lawyers for Public
2
Justice and my testimony relates to proposed
3
Federal Rule of Appellate Procedure 32.1 concerning
4
the citation of unpublished opinions.
5 Generally speaking we wholeheartedly
6
endorse the committee's proposed rule for many of
7
the same reasons stated in the Advisory Committee
8
note accompanying the proposed rule and we believe
9
that the committee should approve it.
At the same
10
time however, we believe that the proposed rule
11
does not go far enough and we would urge the
12
committee to consider issuing a new proposed rule,
13
one that would require all appellate decisions to
14
be given the weight of binding precedent.
15 And in support of that position, I wish to
16
stress three points this morning:
one, that
17
allowing courts to issue unpublished decisions
18
which do not make law is contrary to our rule-based
19
system of lawmaking; two, issuing decisions that do
20
not make law creates both the perception and
21
unfortunately the reality that courts issue
22
nonrule-based and inconsistent decisions; and
67
1
three, the fact that requiring all decisions to be
2
given the weight of binding precedent will increase
3
judicial workload cannot justify an approach that
4
violates the basic principles of the American
5
judicial system.
6 Our first point is that unpublished
7
opinions are contrary to rule-based decisionmaking.
8 Our legal system is predicated on the idea that
9
society should be governed by the rule of law and
10
not the rule of men and women.
Courts preserve the
11
rule of law by issuing decisions that both apply
12
the law and create law.
13 As the Honorable Judge Wood just recently
14
stated very succinctly, our courts are public
15
courts and they exist not merely to arbitrate
16
dispute or just to decide cases.
However, when
17
courts issue unpublished or nonprecedential
18
decisions, they undermine both of those facets of
19
the rule of law system because they neither
20
articulate a lasting principle of law through their
21
decisions; nor do they require future courts to
22
apply the law that was used in their previous
68
1
unpublished decisions. Without a
system that binds
2
future courts to follow its own past decisions,
3
nothing ensures that courts will act according to
4
principle rather than personal opinion.
5 This, in turn, erodes another basic
6
principle of our judicial system, the notion of
7
fundamental fairness, that like litigants should be
8
treated alike. Every litigant
who walks into
9
court should be able to have the expectation that
10
he or she will be treated no differently than any
11
other litigant. However, when
courts can issue
12
unpublished decisions in which they can decide an
13
issue one way one day and another way the next day,
14
not only are courts telling those litigants that
15
they are not entitled to have that expectation but
16
additionally, that it is perfectly reasonable and
17
proper for courts to actually treat those litigants
18
differently even though they face almost identical
19
situations.
20 We believe the only way to truly preserve
21 a
rule of law system is to require that all
22
appellate decisions actually be given the force of
69
1
law, both present and future, by giving them
2
binding precedential weight.
3 Our second major point is that the
4
practice of issuing unpublished decisions creates
5
both the perception and sadly, the reality of a
6
two-tiered system of justice in which courts are
7
not engaging in rule-based decisionmaking.
8 First in terms of perception, whether or
9 not it is actually true, unpublished
decisions send
10 a
message that courts are engaging in
11
results-oriented decisionmaking.
When a court
12
announces a result in a case but says that the
13
principle underlying that result in the case need
14
not be followed, it sends the message that courts
15
are more interested in getting the result that they
16
want than in the principle underlying that result.
17 Whereas with published opinions the court
18
shows faithful adherence to the rule of law by
19
starting out by identifying an appropriate legal
20
principle and then applying that principle to see
21
which result follows, with unpublished opinions it
22
appears that the court starts out with the result
70
1
and then expressly disclaims the lasting value of
2
any reasoning used to reach it.
As a result, the
3
system creates two different levels of justice
4 being
administered, one for published decisions and
5
another for unpublished decisions.
6 And this perception of results-oriented
7
decisionmaking is, in fact, reinforced by many of
8
the statements that judges have themselves made in
9
their comments to this committee in which they
10
state that in many unpublished decisions the only
11
thing that a panel will agree upon is the result in
12
the case and not necessarily the reasoning used to
13
reach it and moreover, that lawyers in lower courts
14
would actually be affirmatively misled if they were
15
to rely on reasoning that is while printed and
16
stated in the decision, doesn't actually reflect
17
the collective agreement of the panel.
This also
18
exacerbates public perceptions that judges may be
19
motivated more by results than they are by
20
principle.
21 Now in terms of reality, it's also true
22
that unpublished decisions have resulted in a
71
1
reality where inconsistent decisions result. In
2
our written comments we have highlighted a number
3
of examples of inconsistent decisionmaking within a
4
circuit on identical issues that have been caused
5
by the use of unpublished decisions.
In one
6
notable example, the case of United States versus
7
Rivera-Sanchez, which was a published decision of
8
the Ninth Circuit, that panel noted 20 previous
9
unpublished decisions all addressing the same issue
10
but resolving that issue in three different ways.
11 This shows that this problem actually is
12
real and occurring within circuits and it's not
13
something that should be dismissed as merely
14
abstract or theoretical and we believe that the
15
only way that this problem truly can be rectified
16
is to make all decisions binding and precedential.
17 Our third and final point is that the fact
18
that judicial workload will increase as a result of
19
making all decisions binding and precedential
20
cannot justify a radical departure from a
21
rule-based legal system.
22 Now of course, as almost all commenters
72
1
have conceded, it's inevitable, given that judges
2
spend more time on published opinions than they do
3
on unpublished ones, if you require publication of
4
all decisions as precedent, judicial workload is
5
going to increase. And under our
proposed rule,
6
judges are going to face very difficult choices
7
about how to allocate their time.
They may either
8
decide to issue more summary one-line or even
9
one-word dispositions or to spend less time on
10
opinions that they currently designate as published
11
and we recognize this is going to happen. However,
12
this framework is preferable to allowing the
13
continued use of unpublished decisions, we think,
14
for several reasons.
15 The first is that as we have already
16
expressed, mandatory publication as binding
17
precedent is the only way to truly preserve notions
18
of rule-based law-making and fundamental fairness
19
and these principles represent the heart of the
20
judicial function and should not at the drop of a
21
hat, we think, be readily sacrificed at the alter
22
of time savings for appellate judges.
73
1 Second, it may be that the use of summary
2
dispositions, while certainly not ideal, could be
3
preferable to the use of unpublished opinions in
4
many cases. Given that judges have
already stated
5
that a lot of cases they agree on a result but they
6
may not agree on the reasoning, it may not make
7
sense to issue an unpublished decision that
8
contains reasoning that does not reflect the
9
opinion of the panel but to also issue a result
10
that they do agree upon but that is not binding.
11
It may make more sense to make that result binding
12
but then to exclude the reasoning that creates the
13
possibility of lawyers and lower court judges being
14
misled.
15 Third, while judicial workload, we admit,
16
will increase, we believe that the amount that it
17
will increase or the concerns that have been
18
addressed by critics of this rule are somewhat
19
exaggerated and we have several reasons why we
20
think this is so.
21 The first, as the committee is well aware,
22
nine of 13 federal circuits already permit citation
74
1
of unpublished opinions in some form for their
2
persuasive value. And while
there may not be a lot
3
of data already out there, there's no indication
4
that the opinions in those circuits have fallen in
5
quality as judges devote more time to their
6
unpublished decisions or that lawyers and lower
7
court judges are being misled by erroneously
8
relying on unpublished decisions.
9 Second, while certainly not exclusively,
10
an overwhelming number of commenters who have
11
expressed this workload concern are lawyers and
12
judges that practice within the jurisdiction of the
13
Ninth Circuit, which suggests
that while it may
14
not be a problem unique to the Ninth Circuit,
15 perhaps it's a problem certainly much more
16
pronounced in the Ninth Circuit.
And this is not
17
to say that it is not a real problem but a problem
18
of limited geographical scope certainly should not
19
be the driving force behind national policy-making
20
and should not be a reason to reject either the
21
proposed rule or the idea of making all decisions
22
binding and precedential.
75
1 Third, the available statistics that are
2
out there do not support the contention that
3
judicial workload will radically increase. One
4
study by Dean Robel of Indiana University Law
5
School shows no correlation between a circuit's
6
per-judge workload and the percentage of opinions
7
that that circuit chooses to publish.
8 There was another study cited in Law and
9
Contemporary Problems in 1998 which shows a wide
10
disparity in the number of opinions published by
11
individual judges. It studied a
two-year span and
12
showed that within that span a number of active
13
judges published as many as 120 opinions while
14
other judges, also active judges, published as few
15
as 20, which suggests that it's possible that there
16
may be ample room for judges to significantly
17
increase the number of opinions that they publish
18
without detracting from the quality of judicial
19
decisionmaking.
20 And finally, while it's true that judicial
21
workload will increase in the short run, we think
22
there's a possibility that requiring all decisions
76
1
to be binding and precedential could actually
2
reduce judicial workload and the workload of
3
lawyers in the long run by stopping repetitive
4
litigation, by establishing a firm rule of
5
precedent and filling in ambiguities in existing
6
precedent so that you don't have a case like United
7
States versus Rivera-Sanchez that must be decided
8
21 times rather than a single time, and also by
9
providing greater guidance to lower court judges
10
and to lawyers about what the state of the law is
11
so that they have a better idea of whether appeals
12
can and should be filed, and this could ultimately
13
reduce the number of appeals that ultimately will
14
be filed.
15 Our final conclusion would be that as many
16 commenters
have stated this morning and in their
17
comments, both for and against the rule, they seem
18
to acknowledge that unpublished opinions are a bit
19
of an unfortunate practice in that in an ideal
20
world every judicial opinion would give the time
21
and attention that it deserves and whatever path
22
the committee decides to take with respect to
77
1
unpublished opinions, we think it makes little
2 sense to acknowledge the lamentability of the
3
practice of issuing unpublished opinions and then
4
to adopt a rule structure that both enshrines and
5
perpetuates that practice. If
they truly are
6
flawed and imperfect, then they should not be
7
condoned but they should be eliminated.
8 JUDGE ALITO:
Thank you, Mr. Frankel.
9 Any questions?
10 MR. LETTER: I
just had one question for
11
you. The statute that sets up
this process, 20 USC
12 I
think it's 207.1, says specifically that the
13
Supreme Court can promulgate rules of practice and
14
procedure but those rules cannot affect substantive
15
rights.
16 The proposal that you're making, at least
17
to me, raises the question that we would be
18
recommending and the Supreme Court would be
19
adopting a rule that is not practice and procedure
20
but would be substantive. It
would be telling the
21
courts, setting a rule for them that certain
22
opinions bear precedential weight, meaning have
78
1
substance, and isn't that beyond the statutory
2
power of the Supreme Court and therefore this
3
committee?
4 MR. FRANKEL:
Well, I would say that to
5
the extent that it would be, I would think that the
6
rule that allows courts to establish their own
7
rules regarding unpublished opinions would do the
8
same thing by allowing courts to deprive--
9 MR. LETTER:
But that rule just says what
10
you can cite in your brief. It
doesn't say
11
anything about whether that opinion is or is not to
12
govern the substantive rule of law in the case.
13 MR. FRANKEL: Well, I understood, at least
14
from reading Professor Schiltz's summary of the
15
comments, and I may have misunderstood it or
16
misinterpreted it, that originally there was some
17
rule passed in the early '60s or the 1970s that
18
allowed this practice of unpublished opinions.
19
Before there was a practice of issuing unpublished
20
opinions all decisions were published and given
21
precedential weight and there was some shift that
22
allowed the use of unpublished opinions in a way
79
1
that therefore allowed courts to deprive those
2
decisions of having any precedential weight.
3 MR. LETTER: I
may be wrong but I think
4
those were decisions or rules by the courts
5
themselves, either in opinions or in their own
6
rules, which may or may not be valid.
But again
7
this committee and the Supreme Court are bound by
8
the statute, which says we cannot set
9
substantive--we cannot affect substantive rights.
10 MR. FRANKEL: I
don't know whether that
11
rule would be substantive or procedural in the
12
sense that you're not--you're only saying what
13
decisions should be given the force of law but
14
you're not saying what that law would be and I
15
don't know whether that would be classified as
16
substantive or procedural.
17 JUDGE ALITO:
Do you really think that
18
court of appeals judges could write 100 or 150
19
opinions a year, precedential opinions a year,
20
without experiencing an enormous decrease in the
21
quality of the opinions?
22 MR. FRANKEL: I
mean I obviously don't
80
1
have the experience of being a federal judge, so
2
certainly I would show some deference to the
3
opinions of judges who have expressed that some
4
degree in quality would occur.
5 Judicial workload increases all the time
6
and judges seem to find ways to continue to fulfill
7
their judicial duties without sacrificing quality.
8 I
mean the number of appeals, even though more and
9
more are being issued as unpublished opinions,
10
increases every year and this increases a judge's
11
workload and I think that like I said, they may
12
have to find ways of reallocating their time
13
between published--between how they allocate time
14 on
opinions.
15 It may be that some opinions can be issued
16
without spending as much time that is currently
17
spent on them. They could be
written in more
18
narrow ways. It could be that
summary dispositions
19
could be used in certain cases, as I mentioned in
20
my comments.
21 I think there's no question that a
22
judicial workload is going to increase but judicial
81
1
workload always increases and that doesn't mean
2
that we always take steps that deny litigants their
3
opportunities to have fundamental fairness
4
protected, so I think there are ways that judges
5
can do it.
6 MR. SVETCOV: I'm
from San Francisco. I
7
practice in the Ninth Circuit.
So now you want me
8
to read not only the 777 published opinions in my
9
circuit but the other 4,800 that are not published,
10
even though once a panel in my circuit in a
11 published opinion sets the law of the circuit, that
12
is the law of the circuit and everything else is
13
merely an application of that principle to various
14
sets of facts, many of which are very much like the
15
one in the first panel opinion?
16 Why are you asking me to digest 5,000
17
extra opinions each year in my practice? I mean
18
you're forgiving the judges.
They could write
19
summary--you say they can write summary judgments.
20
Why do I have to learn that much more law? What is
21
it about uniformity that makes that a worthwhile
22
principle for me, practicing in the Ninth Circuit?
82
1 MR. FRANKEL:
Well, I would answer that
2
question in several ways. The
first is that
3
available studies that I've seen, particularly the
4
one conducted by Dean Robel, shows that most
5
lawyers practicing within circuits, including the
6
Ninth Circuit, already regularly read, rely and
7
cite to unpublished decisions.
8 Secondly--
9 MR. SVETCOV:
Trust me; I never do.
10 MR. FRANKEL:
Then I guess there are
11
exceptions to every rule.
12
Secondly, many times
unpublished cases are
13
cited because there are holes in existing precedent
14
and if you made those decisions precedential,
15
instead of when you now do research and you
16
initially find the case most on point is an
17
unpublished case but you have to continue doing
18
research because that case cannot be cited, if that
19
was the first case that you found, this would
20
substantially save your research time.
21 MR. SVETCOV:
In my circuit we can find
22
cases on both sides that are already published.
83
1 MR. FRANKEL:
Well, if they're already
2
published, truly if the cases are truly repetitive
3
and they're not going to add anything to your
4
research time, then there's no need to continue to
5
read them. But to the extent
that they do add
6
persuasive reasoning that is not contained in
7
current published opinions, then whether those
8
opinions are citable or not, lawyers have a duty to
9
find that reasoning and to use that reasoning,
10
whether or not they cite the case in their
11
arguments to the court and whether the case is
12
ultimately citable or not or persuasive or
13
precedential doesn't change that.
14 MR. SVETCOV:
Why doesn't Judge Wood's
15
proposal, which I think is true in many circuits,
16
that a motion to publish would resolve that
17
situation in those rare cases?
18 MR. FRANKEL: I
would have two answers to
19
that question. One is that
although, at least it
20
seems in the Seventh Circuit and in many other
21
circuits, any interested member of the public can
22
move to publish a case, those who are going to be
84
1
most aware of it are the lawyers in the case and
2
you're leaving it up to the lawyers in those cases
3
to decide whether or not they think that case
4
merits publication.
5 Second, if the case does not get
6
published, then you still have the risk of
7
inconsistent results occurring and the risk that
8
litigants who walk into court will not be treated
9
equally and in our mind that is the most important
10
concern and the one that must be protected, whether
11
or not a motion to publish is made.
12 Third, it may be that you only want to
13
publish--you find out that you want to publish a
14
case--the case might be useful to you several years
15
after the decision is published and I guess there
16
are procedures to decide how to publish a case, but
17
if the original author of the opinion perhaps is no
18
longer on the court, it may be difficult for a
19
court to decide whether they think that opinion
20
merits publication or not.
21 JUDGE ALITO:
Any other questions?
22 Thank you, Mr. Frankel. We appreciate
85
1
your comments very much.
2 Mr. Judah Best of Debevoise & Plimpton on
3
behalf of the ABA Section of Litigation.
4 STATEMENT OF JUDAH BEST
5 MR. BEST: Good
morning. My name is Judah
6
Best. I wrote it down so that I
couldn't forget
7
it. I'm of counsel to the law
firm of Debevoise &
8
Plimpton. I'm a former chair of
the Section of
9
Litigation of the American Bar Association.
10 Some of you know me in one of my other
11
capacities. I was chair of the
Standing Committee
12
on the Judiciary and prior to that I had been on
13
the committee for a number of years.
I see at
14 least one face that's familiar to me in that
15
context.
16 I'm also a Litigation Section delegate to
17
the House of Delegates of the American Bar
18
Association. By the way, the
Litigation Sectoin is
19
composed of 70,000 trial lawyers.
20 In the capacity as a member of the House
21
of Delegates, in the summer of 2001 I presented to
22
that house a resolution urging that the American
86
1
Bar Association oppose the practice of various
2
federal Courts of Appeals in prohibiting citation
3
to or reliance upon their unpublished opinions as
4
contrary to the best interest of the public,
5
contrary to the best interest of the legal
6
profession. The resolution was
passed by the House
7
of Delegates and is the official policy of the
8
American Bar Association. A copy
of the resolution
9
and the accompanying report are attached to my
10
testimony, which has been presented to this
11
committee.
12 Now in the interest of the committee's
13
time, I will limit my remarks today to two topics.
14
First, that all opinions, whether binding precedent
15
or not, should be published, as provided by the
16
Advisory Committee in proposed Rule 32.1. Second,
17
that the new rule should be uniform.
That is to
18
say the rule should not allow for opt-outs but
19
should govern all circuits. I
think it's sort of
20 higgly-piggly, as I will explore later in my
21
remarks, to see the differences in the circuits.
22 Approximately 80 percent of the opinions
87
1
published by circuit courts today are noncircuit
2
binding. In most circuits today
the opinions are
3
released to publication in the most widely used
4
database services, Lexis and Westlaw.
5
However--it's a big however--it was only recently
6
that the First and Third Circuits began releasing
7
their decisions and the Fifth and Eleventh Circuits
8
still withhold them. And, by the
way, that is true
9
of many state appellate courts, as well.
10 One huge problem is the so-called
11
institutional litigants, the ones who have the
12
opinions--the United States Attorneys, the
13
government agencies, insurance companies, and the
14
like. They're far more likely
than others to have
15
access to the unpublished opinions.
After all,
16
they have a continuing, focussed interest and they
17
set up a library of relevant decisions and I think
18
that gives an unfair advantage to one side.
19 I had personal experience with this.
20
Several years ago I was engaged to counsel a
21
defendant in a criminal appeal.
I went through the
22
familiar process of reviewing the record, sorting
88
1
out the issues, choosing those that seemed most
2
promising and abandoning those that did not. I
3
found an important issue on which there was a split
4
among the circuits and no published opinion in the
5
circuit where the matter was situated.
I said
6
published opinion, so that's the caveat. I
7
counseled that the issue was one of first
8
impression in that circuit.
9 To my chagrin, the United States Attorneys
10
Office produced an unpublished opinion that was
11
contrary to my stated position.
Actually they
12
presented it in the circuit in which it was
13
inappropriate to present it, but they did so.
14
Frankly, I felt that I had been had.
The U.S.
15
Attorneys Office simply had more access to the law
16
than my client did and he and I were at an unfair
17
disadvantage.
18 And this is not an isolated instance. I
19
believe it happens constantly in jurisdictions
20
where opinions are not published but are available
21
and accessible to the institutional litigant.
22 You have developed what I would call the
89
1
homer situation. Indeed,
Professor Lauren Robel,
2
an acknowledged authority in this area, has
3
conducted survey research demonstrating that
4
institutional litigants do, in fact, collect,
5
catalogue and use unpublished opinions in ways not
6
available to other litigants.
Professor Robel has
7 also pointed out that institutional litigants have
8
every incentive to, and I quote, "stack the
9
precedential deck by moving for reporter
10
publication (and therefore circuit-bindingness) of
11
unpublished cases with outcomes that they favor,
12
while allowing the unfavorable decisions to remain
13
unpublished and occult."
And I cite her quotation
14
in my prepared remarks.
15 It's no answer to suggest that
16
anti-citation rules can solve this sort of problem.
17 I
don't think they can. As the chief
judge of one
18
circuit has put it, and I quote, "Commentators have
19
argued that the no-citation rule may work to
20
increase rather than decrease the unfairness to the
21
uninitiated lawyer. If the
sophisticated attorney
22
uses arguments or language drawn from the
90
1
unreported case without citing it, his uninitiated
2
opponent is unlikely to learn of its existence. In
3
sum, if unreported opinions are cited, the
4
uninitiated lawyer can remedy his deficiency; if
5
they cannot be cited, he may not even know a
6
deficiency exists."
7 Now there's another concern and that is
8
that if none of the lawyers know about the occult
9
opinion, the court or its law clerks will know
10
about it. Judges acknowledge
that they read the
11
unpublished opinions and it is impossible to
12
believe they do not consider the reasoning of those
13
opinions when faced with similar fact patterns or
14
arguments, so I think you have to read those 4,000
15
unpublished opinions because the judges are reading
16
them.
17 But the lawyer who cannot research the
18
day-to-day rulings of the appellate bench in a
19
particular area will be that much less prepared to
20
counsel his or her clients.
Binding or not, the
21
unpublished opinions are a pretty good indicator of
22
what a judge thinks on a particular issue in a
91
1
particular context and a faithful recordation of
2
what she or he does in 80 percent of her cases.
3 If one lawyer can get that information and
4
the other cannot, that is not fair.
If the judge
5
has that information and the lawyer does not, that
6
is also not fair.
7 Now there's a deeper problem that must
8
also be dealt with. Although the
circuit rules may
9
rationalize the nonbindingness of some opinions on
10
the theory that they have nothing new to say, the
11
inescapable fact discussed by William Hangley, who
12
is sitting behind me and will be speaking soon, in
13 a
wonderful article published in Federal Rules
14
Decisions, is that they often do break new legal
15
ground. The widely felt
suspicion is that there
16
are important decisions out there but they cannot
17
be accessed. Now that cannot be
good for the law
18
as an institution. In fact, we
believe it is
19
destructive to law and is not respectful to law.
20 Let's talk about uniformity for a minute.
21 I
am aware that the Advisory Committee has
22
consciously decided not to include a local opt-out
92
1
provision in the proposed rule.
We congratulate
2
the committee on that judgment and we urge that you
3
hold to it. I believe that a
local opt-out would
4
leave us with essentially the same Babel of
5
inconsistent rules and practices--I think I used
6
the term higgly-piggly before--in this area that
7
face us today.
8 The circuits have adopted a bewildering
9
variety of inconsistent rules for the handling of
10
unbinding opinions. Some
circuits publish. Some
11
do not. Some circuits allow you
to cite them
12
subject to various tests. Others
prohibit you from
13
citing them in almost all circumstances. One
14
circuit seems to be saying that you may cite them
15
but the court will either ignore them or refrain
16
from mentioning them.
17 In Mr. Hangley's article he summarizes the
18
views of the various circuits as follows. One, you
19
cannot read our nonbinding opinion, A, First
20
Circuit until recently, you must not talk about
21
them. B, Eleventh and Fifth
Circuits in some
22
cases, you may talk about them but first you have
93
1
to find them. Fifth Circuit in
other cases, we
2
discourage you from talking about them even if you
3
find them; however, they are binding and we will
4
apply them against your client.
D, Third Circuit
5
until very recently, you are welcome to talk about
6
them if you can find them; however, we'll not pay
7
any attention. Alice in
Wonderland, ladies and
8
gentlemen?
9 You can read our nonbinding opinions
10
but--Fourth, Sixth, Eighth, Tenth and for some
11
cases District of Columbia Circuit--we prefer that
12
you not talk about them. Second,
Seventh, Ninth
13
Federal and for other cases District of Columbia
14
Circuits, as well as recently First Circuit, you
15
must not talk about them. Third
Circuit very
16
recently, we still will not pay any attention to
17
them.
18 I don't mean to make a comedy of it but I
19
think it's sort of revealing to place it in this
20
context.
21 To make matters worse, several of the
22
circuits, including my own District of Columbia
94
1
Circuit, have a sort of comity rule that prohibits
2
citation of out-of-circuit opinions that could not
3
be cited in the courts which wrote them. That
4
means that every appellate lawyer must become
5
expert in the local rules of every circuit before
6
he can cite and out-of-circuit case.
7 I heard one commentator say well, these
8
are really not problems because some lawyers or
9
many lawyers only argue in their own circuit. That
10
is an answer but in my case I'm a member--I don't
11
collect membership in circuits but I'm a member of
12
the First, Second, Fourth, Fifth, Eleventh, Eighth,
13
and Ninth Circuits and I've appeared in all of
14
those circuits. There is
something known as planes
15
and trains, so lawyers do get around these days.
16 There's simply no need for all this
17
complexity. Traditionally
lawyers and judges have
18
not hesitated to cite the words of novelists,
19
comedians, athletes and cartoon characters, not as
20
binding precedent but simply for whatever
21
persuasive value they may have.
There is no good
22
reason for judges to treat their own words or the
95
1
words of their colleagues any differently a priori
2
and to set up artificial barriers to their
3
citation.
4 In conclusion, I again congratulate the
5
committee upon its promulgations and
6
recommendations of Rule 32.1 and it is my view and
7
that of the Litigation Sectoin that the new rule is
8
badly needed. Thank you very
much.
9 JUDGE ALITO:
Thank you.
10 Questions?
Carol?
11 MS. MOONEY: I
have two questions. You
12 talked first about the unfair advantage to
13
institutional litigants or even judges knowing
14
about opinions that a lawyer does not.
Will that
15
unfair advantage not disappear with the
16
E-Government Act?
17 MR. BEST: I
don't know that it will or it
18
won't. We discussed that as we
heard the reliance
19
on the E-Government Act. I can't
predict that. I
20
know that it's a jungle now. I
don't know that the
21
act is going to clarify that jungle and I think it
22
would be better if you do it the old-fashioned way
96
1
and publish the opinions.
2 MS. MOONEY:
Secondly, you seem to be
3
making the distinction that the first two witnesses
4
were not making; that is, separating citability
5
from an opinion's binding or precedential value.
6
At least a couple of our witnesses collapsed those
7
two things. Could you explain
how you believe--
8 MR. BEST: I'm
not sure that I believe
9
there's any significance. I
think citability and
10
precedential value, of course, is very important.
11 I
don't think I'm distinguishing between those two
12
concepts. I may be mentioning
them in different
13
aspects of the same problem.
14 MS. MOONEY: I
thought you had. Thank
15
you.
16 MR. SVETCOV:
Mr. Best, thank you very
17
much. Let me ask you a question.
18 MR. BEST: You're
going to have to read
19
those 4,000 opinions.
20 MR. SVETCOV:
Well, let me ask you a
21
question. If the unpublished
opinion begins with
22
the following sentence, "The parties are familiar
97
1
with the facts," and then goes on to discuss four
2
or five different contentions let's say in a
3
criminal case or a summary judgment case, how does
4
one go about citing that?
5 JUDGE LEVI: I
think there's something
6
known as footnotes.
7 MR. SVETCOV:
If "The parties are familiar
8
with the facts" is the first sentence of the mem
9
dispo, many of the Ninth Circuit decisions that are
10
unpublished begin with that sentence and then go on
11
over three or four pages to discuss contentions of
12
law and answer the question and give the parties a
13
disposition on the contentions raised without any
14
explication of the facts, how do I as a subsequent
15
practitioner looking at that disposition use it in
16
my practice?
17 MR. BEST: It's
a question of whether or
18
not--I understand what you meant.
I didn't
19
understand what you were saying before.
I think I
20
would use it in seeing if it's generally a state of
21
facts that requires further elaboration by me and I
22
suppose I would try to get the record on appeal and
98
1
see what the case is all about.
2 MR. SVETCOV:
You would do that?
3 MR. BEST: I
wouldn't do it in 4,000 and
4
you wouldn't do it in 4,000 cases.
5 MR. SVETCOV:
Exactly.
6 MR. BEST: But
if something in the case is
7
arresting in that circumstances, I might very well
8
want to see the record on appeal.
It's a rule of
9
reason, like everything else.
10 MR. SVETCOV:
You listened to Judge Wood's
11
testimony about the fact that circumstances are
12
different in different circuits.
Not only the
13
number of published versus unpublished opinions but
14
the fact that in the Fourth Circuit 10 percent of
15
the cases are published and in the Seventh Circuit
16
43 percent of the cases are published.
17 Doesn't that suggest that a
18
one-size-fits-all uniform rule may not be the best
19
answer for this particular problem but rather, that
20
diversity is the better answer, rather than
21
uniformity? And you were able to
figure out--you
22
and Mr. Hangley were able to figure out all the
99
1
various nuances in the various circuits on rules of
2
publication. They're not
difficult to figure out.
3
Why is uniformity better than diversity here?
4 MR. BEST: I
think there should be a
5
presumption toward uniformity and to the extent
6
that you want to deviate from that, there must be
7
exceptional circumstances that require it. I doubt
8
that there are. I think
uniformity is good. I
9
think that--
10 MR. SVETCOV:
I've spent my whole life
11
fighting for diversity. I'm not
about to change--
12 MR. BEST:
You're using it in a different
13
context.
14 It's a homer concept.
You know all of the
15
problems in your circuit. You
know how to deal,
16
just as I know cases like Smith v. Pollan and very
17
arcane ways of doing things in the District of
18
Columbia Circuit, but we're trying to have a
19
uniform application and I think that's important.
20 MR. SVETCOV: I
go down to the Fifth
21
Circuit all the time. I can
figure out the rules.
22 MR. BEST: I
congratulate you.
100
1 JUDGE ALITO:
Any other questions of Mr.
2
Best?
3 Thank you very much.
We appreciate it.
4 Professor Stephen R. Barnett of Boalt Hall
5
Law School.
6 STATEMENT OF STEPHEN R. BARNETT
7 MR. BARNETT:
Good morning. My name is
8
Stephen Barnett. I'm an emeritus
professor of law
9
at Boalt Hall in Berkeley. I
thank the chair and
10
the committee for allowing me to testify today on
11
the proposed FRAP Rule 32.1, which I strongly
12
support.
13 This committee has been hit by an
14
avalanche of public comments and I confess to
15
having contributed my share. In
addition to this
16
morning's statement, I earlier submitted comments
17
in reply, in part, to Judge Kozinski's comments.
18
In the spirit of expiation then, I thought I might
19
be most useful to the committee this morning by
20
offering some analysis of what's in that daunting
21
pile of 500 plus comments, so that's what I propose
22
to do briefly this morning.
101
1 That great legal realist, Holmes--that's
2
Sherlock, not Wendell--famously solved a case by
3
pointing to the dog that did not bark.
What I find
4
most telling in the comments here is a whole
5
kennelful of dogs that did not bark.
The proposed
6
rule, after all, would require four federal
7
circuits to do essentially what the other nine
8
federal circuits already do--allow their
9
unpublished dispositions to be cited.
That's also
10
what a growing number of states, now 22 of them,
11
already do. We thus have actual contemporaneous
12
experience in both the federal and state courts
13
with what rules that are equivalent to 32.1, in
14
fact, do.
15 What we have in almost all of the 500
16
comments meanwhile are predictions about bad things
17
that will happen if the rule is adopted. If those
18
predictions are accurate, we would expect to see
19
some evidence of such bad things in jurisdictions
20
where equivalents of Rule 32.1 have been adopted.
21
We would expect judges and lawyers from the nine
22
circuits that allow citation of their unpublished
102
1
opinions, the citable circuits if you will, to have
2
filed comments saying to this committee don't do
3
it; we did it and look what happened to us. We'd
4
expect those comments to lay out in painful detail
5
all the adverse consequences that have been
6
suffered in those circuits as a result of making
7
opinions citable and we'd expect to get the same
8
kind of reports from judges and lawyers in the 22
9
states where unpublished opinions are now citable.
10 What we get, however, in the entire stack
11
of comments is virtually no such reports. This is
12
the number one dog that did not bark.
In their
13
silence on this point the comments validate what
14
Judge Frank Easterbrook wrote in his comment.
15
"What would matter are adverse effects and adverse
16
reactions from the bar or judges of the nine
17
circuits and 21 states that now allow citation to
18
unpublished orders and from that quarter no protest
19
has been heard," says Judge Easterbrook.
20 Specifically I will report briefly on
21
three groups of lawyers or judges in the citable
22
circuits from whom one would have expected to hear
103
1
of such adverse effects if they existed. These are
2
circuit judges, lawyers, and federal public
3
defenders. Then I'll report on
three additional
4
groups--first, additional public defenders in the
5 citable circuits whom I
surveyed myself, then
6
lawyers in the Ninth Circuit, and federal circuit
7
judges in the four no-citation circuits.
8 First, federal circuit judges in the nine
9
citable circuits. The comments
received from
10
federal circuits judges in the nine circuits where
11
citation to unpublished orders is now allowed are
12
striking in three respects--first, their paucity;
13
second, their failure to report adverse reactions
14
or effects from such citability; and third, their
15
failure to refer to, let alone criticize, their own
16
circuit's pro-citation rules.
17 In the first place, the number of comments
18
from circuit judges in the citable circuits is only
19
eight. In my written statement I
said six but two
20
came in subsequent to that.
These two letters from
21
Judge Burch of the Eleventh Circuit and Chief Judge
22
Loken of the Eighth Circuit are puzzling. They
104
1
oppose the proposed rule and they report that other
2
judges in their circuit are opposed without
3
mentioning that their own circuits both have rules
4
allowing citation of unpublished opinions--that is,
5
the Eighth and the Eleventh--rules comparable to
6
FRAP 32.1. Neither of these
letters refers to the
7
existing rule in the writer's own circuit, let
8
alone criticizes it and says it's terrible.
9 And one of all eight letters point to
10
adverse effects from the current regimes of
11
citability in the writer's own circuits. To the
12
extent that they refer at all to the citation rules
13
of their circuits, these letters mostly praise
14
those rules. And I would call
your attention to
15
Judge Ebel's letter from the Tenth Circuit, Judge
16
Michael from the Fourth Circuit, Judge Martin from
17
the Sixth.
18 And Judge Bright this morning was eloquent
19 on
the point. He's a wonderful natural
experiment,
20
if you will, since he's sat in all these circuits
21
with all these different citation rules and he said
22
he sees no difference. He's
afraid there would be
105
1 a
difference under FRAP 32.1 because it would bar
2
what I call discouraging words.
Well, as I've
3
argued in my comments, I don't think it would bar
4
them, so I think the one difference Judge Bright
5
sees would not, in fact, be there.
6 So that's judges from the citable
7
circuits. With respect to
lawyers from the nine
8
citable circuits, if you rule out Washington
9
lawyers who, with the exception of Mr. Best and
10
some others, may not focus particularly on the D.C.
11
Circuit and its citation rule, the letters from
12
lawyers are almost equally sparse.
And while
13
almost all of these comments oppose the proposed
14
rule, their opposition only rarely is based on any
15
harms that they claim to result from the citation
16
that is now allowed in the writer's jurisdiction.
17
Again the dog doesn't bark.
18 With respect to federal public defenders
19
in the nine citable circuits, here, too, you would
20
expect that if they were chaffing under the
21
citation rules in those circuits that they would be
22
saying so now to warn and protect their colleagues
106
1
in the four no-citation circuits.
When one looks
2
for comments from federal public defenders in the
3
circuits that now allow citation, however, I count
4
only four and while these comments oppose the rule,
5 they again don't
mention, let alone criticize, the
6
citability rule under which they, in fact,
7
practice.
8 Given the paucity of comments from federal
9
public defenders in circuits allowing citation, I
10
conducted my own little fact-finding inquiry. I
11
interviewed by telephone eight randomly selected
12
federal public defender attorneys in the Fourth,
13
Fifth, Eleventh and D.C. Circuits and I have their
14
names and my notes of the conversations and am
15
willing to make them available to anyone who wants
16
to see them.
17 Asked whether they thought the citability
18
of unpublished opinions in their circuit added to
19
their research time, the attorneys unanimously said
20
essentially no. They said
"Not a bit" or it
21
doesn't add any burden at all, or perhaps a little
22
bit, such as 2.5 percent.
107
1 In the Fifth Circuit, whose unpublished
2
opinions only recently have been put no line and
3
hence there should be no substantial factor of
4
custom or habit, the appellate chief in Houston
5
reported that there was "no added burden."
6 More than one of the attorneys I
7
questioned expressed surprise and some even
8
derision that their colleagues in the Ninth Circuit
9
were opposed to a rule allowing use of unpublished
10
opinions. Public defenders in
the Ninth Circuit
11
"must be scared of computer research," said one
12
attorney.
13 "No one complains about citability," said
14
the public defender in Dallas.
"This is the kind
15
of research that lawyers do," said more than one
16
attorney. More than one also
noted that an
17
unpublished opinion "can be helpful when it's right
18
on point on the facts."
19 Does citability of unpublished opinions
20
entail a financial burden for public defenders
21
offices? The attorneys
unanimously said no. Lexis
22
is provided to those offices completely free and
108
1
Westlaw is provided at the special rate of $150 a
2
month, the same rate judges get, I'm told.
3 It was acknowledged, however, that
4
litigants who are pro se or had no right to counsel
5
already are hurt by the cost of Lexis and Westlaw
6
and would be marginally more hurt if unpublished
7
opinions were included in the database.
But, said
8
one attorney, "You go on the merits. If an opinion
9
is there, it's there." So
my survey gives quite a
10
different picture from that produced by the
11
comments from public defenders in the Ninth
12
Circuit.
13 Let me look now quickly at Ninth Circuit
14
lawyers. Another notably quiet
kennel in this
15
proceeding has been the offices of lawyers within
16
the Ninth Circuit who support the proposed rule.
17
There must be some such lawyers but you wouldn't
18
know it from looking at these comments.
I count
19
more than 100 comments from Ninth Circuit lawyers
20
opposing FRAP 32.1 while the comments from Ninth
21
Circuit lawyers supporting the proposed rules can
22
be counted on one's figures. How
can this be, one
109
1
may wonder?
2 Judge Tashima reports that there was a
3
letter-writing campaign among lawyers in the Ninth
4
Circuit to oppose the new rule, but lawyers are no
5
more herdable than cats. No mere
letter-writing
6
campaign would produce this kind of a landscape.
7
So what did? How is it that
Ninth Circuit
8
lawyers, so famous for their independence, their
9
fractiousness, their readiness to take on
10
motherhood, apple pie, or recently God, have
11
suddenly found an important legal issue that's
12
highly controversial elsewhere but on which
13 virtually
all Ninth Circuit lawyers agree. How
has
14
this committee become such a powerful builder of
15
consensus?
16 The answer lies, of course, not in the
17
fairly counted views of Ninth Circuit lawyers but
18
in the dynamic of self-selection.
The majority of
19
Ninth Circuit judges are known to be strongly
20
opposed to the proposed rule.
Given that fact,
21
lawyers who practice in the Ninth Circuit and who
22
also oppose the rule have every reason to say so,
110
1
and may it please the court.
Lawyers who support
2
the rule, meanwhile, have no need to vote against
3
the judges before whom they practice.
These
4
lawyers just take a walk. They
don't submit
5
comments. Thus, we get the
one-sided results
6
displayed here.
7 With respect to federal circuit judges in
8
the no-citation circuits, we can count the votes
9
pretty much from their comments filed here. As I
10
have said, the circuits that allow citation have
11
produced only eight comments from circuit judges
12
but what about the four circuits that ban
13
citation--the Second, Seventh, Ninth and Federal?
14 From
those quarters there's plenty of opposition to
15
the proposed rule. It's worth
looking closer,
16
however, at the vote counts in these circuits,
17
starting with the Ninth.
18 While the vote count in the Ninth Circuit
19 seems monolithic, 38 judges opposing the rule
and
20
only Judge Tashima expressly supporting it, but
21
that may not be the whole story.
Judge Tashima
22
reports that there was a letter-writing campaign
111
1
among both lawyers and judges to oppose the rule.
2
He and Judge Thomas also report that the Ninth
3
Circuit was closely split on the proposed rule.
4
Well, the eventual comments certainly are not
5 closely split but it may be that like Judge
Thomas,
6
other Ninth Circuit judges sacrificed their own
7
views on the alter of circuit solidarity.
8 And even so the Ninth Circuit's vote was
9
far from unanimous. Six active
judges did not
10
vote. There may be a question
whether you consider
11
that votes against the majority or not.
The vote
12
among active judges was 23 to seven in the Ninth
13
Circuit--one-sided but not overwhelming. It's only
14
when you add the senior judges and 15 senior judges
15
oppose the rule while three didn't vote, that the
16
margin became 38 to 10.
17 One may wonder, of course, as with the
18
Ninth Circuit lawyers, how is it that Ninth Circuit
19 judges, so famously independent and ready for
20
dissent, in this case produced only one expressed
21
dissent from 48 judges. I have
no answer to that
22
question.
112
1 Turning to the Federal Circuit, it
2
out-does the Ninth, producing unanimity against the
3
proposed rule. But the other two
no-citation
4
circuits, the Seventh and Second, are split. In
5
the Seventh Circuit the vote among all judges was
6
nine to six. Among active judges
alone it was
7
eight to three. I guess those
are the figures that
8
Judge Wood reported this morning.
Among the three
9
dissenters, Judges Easterbrook and Ripple both
10
wrote forceful comments supporting the proposed
11
rule. As Judge Wood indicated,
the majority also
12
suggested a fallback compromise based on routinely
13
granting motions for publication.
14 Then in the Second Circuit the vote among
15
all judges was 19 to four opposing the rule. The
16
19, however, included all 11 of the circuit's
17
senior judges. Among active
judges alone the vote
18
was eight to four. As in the
Seventh Circuit, the
19
Second Circuit majority made a significant
20
compromise suggestion. This was
that if the rule
21
goes forward, it operate only prospectively.
22 Then there's a special fact about the
113
1 Second Circuit that should be noted. While there
2
was apparently no statement from any dissenting
3
circuit judge in the Second Circuit, there exists a
4
mutiny among the district judges of the Second
5
Circuit. As I relayed in my statement
at page 13,
6
several district judges in the Second Circuit have
7
been citing summary orders of the Second Circuit,
8
in defiance of that court's no-citation rule. See
9
the Harris case, which is cited in my statement,
10 where Judge Lynch describes the Second
Circuit as
11
pretending that this decision never happened.
12 Well, the action of these district judges
13
perhaps suggests the depth of the disagreement in
14
the Second Circuit. It may also
suggest that
15
citability is becoming a de facto norm in the
16
Second Circuit.
17 In sum, the rather close splits in the
18
Seventh and Second Circuits, combined with the
19
suggested fallback compromises by the majority in
20
each case, may indicate that those circuits, the
21
Second and Seventh, do not strongly oppose
22
citability. That may be
particularly so for the
114
1
Second Circuit in which the states of New York,
2
Connecticut and Vermont all allow citation, and it
3
may become so for the Seventh Circuit if Illinois
4
switches to citability and the Rules Committee of
5
the Illinois Supreme Court, I'm told, is meeting
6
later this month on a proposal to switch to
7
citability with respect to at least some orders of
8
the Illinois Courts of Appeal.
9 The bottom line then, the bottom line of
10
the vote count is that of the four no-citation
11
circuits, the Second and Seventh and perhaps even
12
the Ninth are split on the proposed rule. Only the
13
Federal Circuit is monolithic.
14 In contrast, the nine circuits that permit
15
citation appear to be quite satisfied with the rule
16
that they have. Not a single
judge from a circuit
17
that allows citation and virtually no one else from
18
such a circuit has filed a comment complaining
19
about that rule of citability. This is a remarkable
20
record, it seems to me. It may
not bark but it
21
speaks volumes. Thank you.
22 JUDGE ALITO:
Thank you, Professor
115
1
Barnett.
2 Questions?
3 MR. SVETCOV:
Professor Barnett, I have to
4
confess that I graduated from Boalt Hall four years
5
ago and I guess--
6 MR. BARNETT:
One of our most
7
distinguished graduates.
8 MR. SVETCOV: Except
that I probably am
9
getting an F in your class on publication. But
10
don't you account for the Hound of the Baskervilles
11
in your presentation in Judge Wood's description of
12
the different ways in which circuits treat
13 unpublished
opinions, the various percentages of
14
cases that are not published, and in particular,
15
the ways in which unpublished opinions are crafted.
16 Namely, as I mentioned to Mr. Best a few
17
minutes ago, in the Ninth Circuit the great
18
majority of unpublished opinions begin with the
19
words, "The parties are familiar with the facts."
20
Then the discussion that follows is a discussion of
21
the legal issues that were raised by the appellant
22
and are disposed of for the benefit of the parties
116
1
who are familiar with the facts.
As a practicing
2
lawyer in the Ninth Circuit, I don't see how I
3
could make very much use of that type of opinion.
4 I contrast that with cases that are
5
sometimes published in the State of California in
6
which the judges will spend 30 pages laying out all
7
of the facts and addressing all of the legal issues
8
fully, but they don't publish because California,
9
as you know, has a rule that says once there's a
10
principle of law in place in a court of appeal
11
decision, that applications of that rule are not to
12
be published.
13 So you do have these different types
of
14
opinions. Doesn't that mitigate
in favor of
15
diversity rather than uniformity?
16 MR. BARNETT:
Well, I have my own
17
arguments with the state judges in California about
18
this, too. I think you have to
ask whether it's
19
underlying essential differences that make the
20
difference or whether it's practices that the
21
judges have acquired perhaps for reasons that are
22
not congruent with the best interest of the
117
1
judiciary and the litigants.
2 For example, if you compare these
3
California state decisions with state decisions in
4
New York, you find it's roughly the same number of
5
cases decided each year, about 12,000.
In New York
6
all published, all with opinions, all citable. In
7
California, 93 percent not citable.
And you may
8
say isn't that just a difference in cultures? I
9
say yes, but maybe it shows that California ought
10
to be doing something differently.
11 MR. SVETCOV:
I'm from New York
12
originally.
13 MR. BARNETT:
So am I.
14 MR. SVETCOV: I
want to also disabuse you