September/October, 2000




Jerome I. Braun[FNa1]


Copyright (c) 2000 by the American Judicature Society; Jerome I. Braun




JUD--Judicial Management, Process & Selection


If the Eighth Circuit's Anastasoff decision survives, all opinions will become both citeable and precedential. If it doesn't, a uniform national rule is needed.


       On August 22, 2000, the U.S. Court of Appeals for the Eighth Circuit, in Anastasoff v. United States, held that the Constitution forbids non-precedential decisions. This was the latest episode in a long-standing controversy on the issue of citation of unpublished opinions. In a recent article, Ninth Circuit judges Alex Kozinski and Stephen Reinhardt wrote that “[f]ew procedural rules have generated as much controversy as the rule prohibiting citation of [non-precedential dispositions]. At bench and bar meetings, lawyers complain about being denied this fertile source of authority. . . . When we refuse, lawyers grumble that we just don't understand their problems.” [FN1]


       Ever since systematic reporting of *91 judicial decisions first began in the 16th century, lawyers have complained that there were more decisions published than could be comprehended. In 1671 the English Chief Justice Hale wrote of the body of decisions that “as the rolling of a snowball, it increaseth in bulk in every age, until it becomes utterly unmanageable.” The Federal Reporter now increases by 30 volumes a year, a rate of increase one federal judge has compared to the spread of kudzu. Only improvements in indexing, and the availability of computer-aided research, keep courts and litigants from drowning in precedent. Even so the waters rise uncomfortably high.


       Fortunately not every appellate decision is really needed as precedent. Appellate opinions have two distinct purposes: declaring the law and correcting error. Some opinions really do serve the traditional common law function of stating the law for the guidance of those who come after. Some establish new rules, or change old ones, or resolve conflicts, or apply the law to novel facts; some contain original reasoning or analysis, or collect legislative history, or illuminate the law in other ways. These opinions are the core material of the common law, and it serves the law's social purposes to have them published and relied on, and kept in force by stare decisis.


       But there is another, larger class of appellate opinions that do not advance the law, but merely apply existing well-established rules to resolve disputes arising in routine factual situations. In order to preserve the legitimacy of judicial institutions, appellate courts provide litigants with written statements of the grounds of decision. But it is not necessary that these opinions be included in the vast and quickly growing body of common law, for they add nothing of substance to what is already there. Also, their exclusion from the body of precedent permits the courts to decide these cases much more quickly than would be the case if they were writing for the ages. Accordingly in recent decades they have been issued as “unpublished” decisions, and are not regarded as precedent binding either the court or subsequent litigants. Some courts even forbid their citation, except (as in the Ninth Circuit) for purposes of establishing law of the case, issue or claim preclusion, or “for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the existence of a related case.”


       When appellate courts began issuing “unpublished” opinions, they really were unpublished--they could be obtained in typed form from the clerk, but generally not otherwise. They were not indexed, and their very existence was scarcely known beyond the parties and, occasionally, certain frequent institutional litigants who had the interest and resources to keep track of them. But since then the information explosion has overtaken the old system. “Unpublished” decisions are available on Westlaw and Lexis, on the Internet, and in a whole library of specialized reporters ranging from long-established looseleaf serials like those of cch and bna to the more informal circulars that now appear in almost every area of practice. So the word “unpublished” has become purely a term of art, actually meaning “non-precedential.”


Anastasoff v. U.S.


       On August 22, 2000, the Eighth Circuit dramatically recast the whole debate on this topic with its decision in Anastasoff v. United States,--F.3d--, 2000 WL 1182813. The question was whether Anastasoff's tax refund demand was timely. An earlier non-precedential circuit decision, if followed, *92 would have led to a holding against Anastasoff, but (relying on the circuit rule) Anastasoff argued that because it was unpublished it was not binding. The Eighth Circuit held not only that it was binding, but that the Constitution forbade non-precedential dispositions. Judge Richard S. Arnold, who wrote the opinion, had recently published an extra-judicial plea for respect for the “vast underground body of law” found in unpublished opinions. [FN2] Now he has brought that whole body of law (in the Eighth Circuit, anyway) up to the surface.


       The Anastasoff opinion is very ingenious. It argues, from Blackstone and other authorities, that in the 18th century precedential status was considered a necessary element of all judicial decisions. Therefore when the Constitution defined the judicial power to declare the law, the Framers assumed that any such declaration would be precedential. Requiring judicial decisions to be precedential protected against arbitrary use of the judicial power, and formed an important separation between the legislative and judicial functions. From this it follows (the opinion holds) that courts--federal courts at least--may not issue non-precedential decisions because doing so “expands the judicial power beyond the limits set by Article III by allowing us complete discretion to determine which judicial decisions will bind us and which will not.”


       Anastasoff is a wholly original pronouncement. It cites only one modern authority, and imposes a view of Article III quite unexampled in the law of any other circuit. And it assumes that 18th century legal norms limit the scope of modern practice, and that because the non-precedential opinion was (if indeed it really was) unknown to Blackstone, it must remain unknown to us. This is not to say the opinion is not well reasoned, or is in any sense incorrect--the question how far the experience of the Framers controls modern constitutional practice is one of the most persistent, pervasive and difficult problems in American legal theory. This is not the place to evaluate either Judge Arnold's scholarship or his remarkable result.


       It remains to be seen how widely Anastasoff will be followed. If Anastasoff is not rejected by the Eighth Circuit en banc, it will surely be reviewed by the Supreme Court at the first opportunity, for it reaches at once into every circuit. Circuits like the Tenth, which permit citation to unpublished dispositions, nonetheless generally recognize their non-precedential status; but now any litigant with a helpful unpublished case can insist that for constitutional reasons it is binding and require the circuit court to decide whether to accept the Eighth Circuit's reasoning. Similarly, the Fifth Circuit, where unpublished decisions issued after 1995 are non-precedential, will find its rule arguably repealed on constitutional grounds. Even in circuits like the Ninth, which forbid citation of unpublished decisions, they will now be cited anyway, and as governing precedents, with footnotes saying the no-citation rule is unconstitutional.


       The extent of the body of precedent in every circuit, and the circuits' ability to regulate it, is thus called into question by this decision. Moreover, as Anastasoff is based on Article III, it arguably extends to all Article III courts, making every district court order binding precedent within the district. It may even extend to state courts, as the judicial power defined in state constitutions is usually based on the model of the federal constitution. It is unlikely that the Supreme Court will allow such uncertainty to continue for long, whether Anastasoff herself brings the issue to the high court or not. It will be raised soon in every circuit, and will no doubt prompt a blizzard of requests for en banc review of cases briefed and decided under no-citation rules.


Toward a uniform rule


       If Anastasoff survives, of course, the whole question of non-precedential decisions and their citeability becomes pass-, as all opinions past and present will automatically become both precedential and citeable. But even if it does not survive, Anastasoff provides a welcome occasion for deciding, finally on a uniform national basis, whether non-precedential opinions are a good idea, and if so whether they should be citeable for persuasive value. Even if it turns out that the Eighth Circuit's reasons for abolishing the non-precedential category are not constitutionally compelled, those reasons must be respectfully considered. Any circuit may adopt the result of Anastasoff, if not its reasoning, simply by modifying its circuit rule.


       United States courts of appeals have come to different conclusions about unpublished opinions. Each of the 12 territorial federal appeals courts has a rule on publication (and on citation of unpublished opinions), and every rule is different. At this writing in summer 2000, six permit citation of non-precedential opinions for their persuasive value, and five do not; as noted the Eighth has (at least *93 for now) abolished the category of non-precedential decisions. As there is no common policy, each circuit's policy is subject to continuing debate such as that now in progress in the Ninth Circuit, whose recently revised rule has just entered a two-year public comment period, still not allowing persuasive citation despite the recommendation of the circuit's Judicial Conference and Rules Advisory Committee that it do so.


       Apart from the constitutional issue raised in Anastasoff, citation is the most significant open question in this continuing debate nationally, because if non-precedential decisions can be cited at all they must be searched for, but if not they may safely be ignored. (A similar divergence appears in state intermediate appellate courts, where they have rules on the subject--for example, California does not permit citation of unpublished decisions while Ohio does.)


       The national organs of the federal judiciary have tried for many years to bring uniformity to this area, without success. In 1964 the Judicial Conference resolved that courts should authorize publication “of only those opinions which are of general precedential value.” In 1971 the Federal Judicial Center suggested that publication of opinions be curtailed, and that non-published opinions not be cited. The Judicial Conference circulated this report and asked the circuits to devise publication plans. In 1974 the Conference noted that responses to this initiative had created “in effect 11 legal laboratories accumulating experience,” and “because the possible rewards of such experimentation are so rich,” it should be allowed to continue without interference. In 1978 a Conference committee noted widespread disagreement (lawyers, for example, led by the ABA, opposed no-citation rules) and found itself “unable to say that one opinion publication plan is preferable to another.” In 1995 the Judicial Conference's Long-Range Plan for the Federal Courts declared that this was still “an area in flux that requires study and assessment,” and recommended still more committee work.


       There is some utility in leaving the circuits free to innovate as a laboratory for judicial reform. But this utility is lost if experimentation continues forever and the reform itself is never undertaken. After 36 years, now seems like a good time to consolidate and prescribe a uniform rule for federal appeals courts. Such a rule could also serve as a model for state appellate courts.


A model rule


       It seems, for the reasons stated earlier, that the category of non-precedential opinions is a useful one and should be retained, but that it is time for a uniform rule governing their selection and designation. The following elements, adapted from the rules of all 12 territorial circuits (and state rules in nine states that have rules on the subject) seem best suited to a uniform rule. No existing rule has all these features, but all are the product of the “laboratory experimentation” found so valuable by the Judicial Conference.


       An opinion should be ordered published, and be treated as precedential, if it:


        • establishes a new rule of law;

        • alters, modifies, clarifies or explains an existing rule of law;

        • contains a reasoned criticism or questioning of existing law;

        • resolves or identifies an apparent conflict of authority, either within the circuit or between the circuit and another, or creates a conflict between the circuit and another;

        • draws attention to a rule of law that appears to have been generally overlooked;

        • applies an existing rule of law in a novel factual context, differing materially from those in previously published opinions of the court applying the rule;

        • contributes significantly to the legal literature by reviewing the legislative, judicial, administrative or electoral history of an existing rule of law;

        • interprets a rule of state law in a way conflicting with state or federal precedent interpreting the state rule;

        • is a case of first impression in the court with regard to the substantial issue it resolves;

        • concerns an issue of substantial or continuing public interest or importance; or

        • will otherwise serve as a significant guide to the bench, bar, or future litigants.

       Even without such properties, an opinion should be published if it:


        • reverses, modifies, or denies enforcement, on substantive grounds, of a lower court or administrative agency decision, or affirms it on a substantive ground different from those set forth below;

        • certifies a question of law to a state supreme court, or applies the answer;

        • is by the court sitting en banc; or

        • when the case has been reviewed, and its merits addressed, by an opinion of the United States Supreme Court.

       Most rules provide that publication is to be determined by a majority of the deciding panel, but in practice panel majorities customarily defer to any judge who wants publication. A uniform rule should make explicit the right of any judge on the panel to order publication, even for reasons not in the formal criteria, if the judge believes ordered publication would serve a useful public purpose. The panel should decide on publication before releasing the opinion, to avoid circulation of “twilight” opinions whose precedential status is uncertain.


       Some courts provide for partial publication, where a part of the opinion meets the publication standards and the rest does not; this option should be available to all courts. If there is a dissent, concurrence, or other separate opinion, all the opinions in a case should be published, as the conflict of views can illuminate an area about which, by definition, reasonable minds can differ. Dissents from grant or denial of rehearing or en banc review should also be published at the request of the dissenting judge. The precedential status of every opinion should be stated above the caption.


*94 Citeability


       Most of these provisions do not seem controversial. There remain, however, some areas where there is controversy. As noted, the most difficult of these is whether to permit citation to unpublished opinions. All courts (except, now, the Eighth Circuit) agree that these opinions are not precedent. But should advocates be allowed to cite them as “persuasive” authority, just as they can cite precedential opinions from other circuits and states?


       There is much to be said on both sides. Scholars have argued that permitting citation to unpublished decisions greatly multiplies the scope of research, which necessarily favors litigants with greater resources. Judges have argued that the very fact that an opinion is to be non-precedential permits it to be composed much more quickly; knowing that these opinions may be cited after all impacts this economy. And it may be argued further that opinions no member of the deciding panel felt should be precedent, or met any of the court's publication criteria, would be of little persuasive force even if cited.


       On the other hand, experience shows that there are gems among the unpublished decisions. There are opinions that should have been published, or whose value under present circumstances could not have been known at the time of writing, or which, as Judge Arnold put it, “were otherwise swept under the rug.” Why should an unpublished opinion have to remain underground when an advocate believes in good faith that it could be useful to the court? And it is poor policy to allow judges to write carelessly (or worse) because they know their opinions will be buried. It seems best, therefore, to allow these decisions to be brought to the court's attention.


       As noted, if Anastasoff is accepted nationally, the whole question disappears. But if not, then to avoid wholesale citation of unpublished cases (wiping out many of the benefits of non-publication) a reasonable compromise would be to permit citation only where, in an accompanying declaration or a certification within the paper, the advocate states a good-faith belief that the unpublished opinion:


        • meets the court's publication standards, despite not having been ordered published, or

        • bears directly on both the law and the facts of the case at bench, or

        • is otherwise relevant and of probable persuasive value, and gives the reason for this belief. Of course the text of the unpublished opinion should accompany the paper that cites it; and the citation itself should acknowledge its non-precedential status.

       Another area where views diverge is whether advocates or others should be permitted to request a publication order. Those opposing this argue that whether an opinion becomes part of the body of precedent binding in the jurisdiction is a judicial decision unrelated to the immediate resolution of the action itself. Publication does not affect the interests of the parties in their dispute, and it is inappropriate for non-judicial participants or onlookers (especially those with an ax to grind) to intervene. But others feel that those who may have a better sense than judges of what is important to classes of litigants, or social or economic constituencies, ought to be allowed (like amici curiae) at least to ask that an opinion be published. Perhaps a fair compromise would be to allow a publication request from anyone interested enough to make one, but only within the first 60 days after the opinion is filed. [FN3]




       Committees can debate forever. If Anastasoff does not survive, these proposals can serve as a guide to move the debate toward resolution by a uniform publication and citation rule. Until then, useful precedents are being withheld from use by lawyers, and by courts who should be able to consider them; and a whole class of decisions remains immune from the penetrating scrutiny to which every judicial decision should be subject.


[FNa1]. The author thanks David F. Phillips of Farella Braun & Martel for his help in preparing this article for publication.


[FN1]. Please Don't Cite This!, California Lawyer, June 2000, at 43.


[FN2]. Unpublished Opinions: A Comment, 1 J. of Appellate Practice and Process 219 (1999).


[FN3]. On the other hand, depublication of a published opinion by order of a higher court, on the California model, is not a good idea--it creates instability in the law, and is subject to abuse, especially where requested incident to settlement. The orderly way for the appellate system to reject a rule announced in a precedential opinion is by rehearing, by overruling it in a subsequent decision, or by a higher court's review. To do otherwise violates the common law tradition and risks alteration of the body of precedent outside the context of an actual case or controversy. A uniform rule should not include this option.


84 Judicature 90