A Model Rule For Publication
As Proposed by William M. Richman and William L. Reynolds
48 The University of Chicago Law Review 573 (1981)


  1. Minimum Standards:
  2. Every decision will be accompanied by an opinion that sufficiently states the facts of the case, it's procedural stance and history, and the relevant legal authority so that the basis for the disposition can be understood from the opinion and the authority cited.

    If the decision is based on the opinion below, sufficient portions of that opinion should be incorporated into the opinion of this court so that the basis for this court's disposition can be understood from a reading of this court's opinion.

  3. Publication of Opinions:

    1. Criteria for Publication: An opinion will be published if it:
      1. establishes a new rule of law, or alters or modifies an existing rule of law, or calls attention to an existing rule of law that appears to have been generally overlooked;
      2. applies an established rule of law to facts significantly different from those in previous applications of the rule;
      3. explains, criticizes, or reviews the history, application, or administration of existing decisional or enacted law;
      4. creates or resolves a conflict of authority either within the circuit or between this circuit and another;
      5. concerns or discusses a factual or legal issue of significant public interest;
      6. is accompanied by a concurring or dissenting opinion;
      7. reverses the decision below, unless:
        1. the reversal is caused by an intervening change in law or fact, or
        2. the reversal is a remand (without further comment) to the district court of a case reversed or remanded by the Supreme Court;
      8. addresses a lower court or administrative agency decision that has been published; or
      9. is an opinion in a disposition that
        1. has been reviewed by the United States Supreme Court, or
        2. is a remand of a case from the United States Supreme Court.
    2. Publication Decision: There shall be a presumption in favor of publication. An opinion shall he published unless each member of the panel deciding the case determines that it fails to meet the criteria for publication.

  4. [Protection of Traditional Appellate Processes]:
  5. The court recognizes that the decision of a case without oral argument and without publication is a substantial abbreviation of the traditional appellate process and will employ both devices in a single case only when the appeal is patently frivolous.