114 Harv. L. Rev. 940 Harvard Law Review January, 2001 Recent Cases *940 Constitutional Law--Article III Judicial Power--Eighth Circuit Holds That Unpublished Opinions Must Be Accorded Precedential Effect .--Anastasoff v. United States, 223 F.3d 898 (8Th Cir. 2000). Copyright (c) 2001 Harvard Law Review Association The federal courts of appeals, pursuant to a recommendation of the Judicial Conference of the United States, [FN1] have decided that certain opinions, orders, and decisions do not merit publication. [FN2] The circuits, concerned by the rapidly growing number of appellate and district court opinions, [FN3] have fashioned rules to limit the precedential effect of unpublished decisions. [FN4] Although the circuit rules vary, in general they prohibit litigants from citing unpublished decisions and accord such decisions no precedential effect. [FN5] Recently, however, in Anastasoff v. United States, [FN6] the Eighth Circuit declared that its own Rule 28A(i), [FN7] which proscribed the use of unpublished decisions as precedent, was unconstitutional because it exceeded the judicial power granted to courts under Article III. [FN8] Although the policies implemented in Anastasoff are sound--courts should not be able to ignore the body of law they have created-- the Eighth Circuitjeopardized *941 the viability of its decision by basing its interpretation of the Constitution on an inadequate historical inquiry. On April 13, 1996, Faye Anastasoff mailed a refund claim for taxes that she overpaid on April 15, 1993. [FN9] The Internal Revenue Service received her claim three days later and promptly denied it under 26 U.S.C.
6511(b), which limits refunds to taxes paid during the three years prior to the filing of the claim. [FN10] Anastasoff brought suit, arguing that 26 U.S.C.
7502, the "Mailbox Rule," [FN11] should be read expansively to protect taxpayers from postal service delays. [FN12] In a terse opinion, the District Court for the Eastern District of Missouri dismissed Anastasoff's complaint. [FN13] The Court of Appeals for the Eighth Circuit affirmed. Writing for a unanimous panel, [FN14] Judge Richard Arnold found that there was a case on point. In Christie v. United States, [FN15] the Eighth Circuit had rejected the applicability of
7502 to timely claims. However, Christie was an unpublished decision, and the Eighth Circuit's Rule 28A(i) denied precedential effect to unpublished decisions. [FN16] Judge Arnold resolved the dilemma by striking down the rule, holding that "Rule 28A(i) 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." [FN17] The court began its analysis by adducing historical evidence of the meaning of "judicial power." [FN18] Sir William Blackstone, whose writings influenced the Framers of the Constitution, contended that strict adherence to precedent served to stabilize the law and to separate the legislative and judicial powers. These ideas formed part of the declaratory theory of law, which, the court asserted, the Framers accepted. *942[ FN19] For example, Alexander Hamilton argued that, "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." [FN20] The court also cited the writings of James Madison and the Anti-Federalists to support this proposition. [FN21] Judge Arnold determined that "[t]he duty of courts to follow their prior decisions was understood to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power." [FN22] Its historical inquiry complete, the court concluded that the "doctrine of precedent limits the 'judicial power' delegated to the courts in Article III." [FN23] The court next attempted to allay concerns regarding the ramifications of its decision. First, the court noted that it was not ruling on whether decisions should be published: [FN24] courts need not publish opinions, but they must grant even unpublished decisions full precedential effect. [FN25] Second, the court addressed the argument that courts should not accord precedential effect to all opinions because the sheer volume of cases does not leave judges adequate time to write thorough opinions in every case. Judge Arnold posited that, if this argument were valid, the appropriate remedy would be to appoint more judges, not to ignore the decisions of existing judges. [FN26] Finally, the court denied that it was advocating a "rigid doctrine of eternal adherence to precedents." [FN27] Rather, the court asserted that, "[i]f the reasoning of a case is exposed as faulty, or if other exigent circumstances justify it, precedents can be changed." [FN28] To overturn precedent, however, a court must meet the "burden of justification." [FN29] *943 The Eighth Circuit's conclusion regarding the bounds of Article III finds little support in either history or practice. Although the court asserted that the doctrine of precedent is implicit in the declaratory theory, [FN30] it produced scant evidence that the Framers relied on the explicit theory, let alone on the implicit doctrine, when drafting the Constitution. [FN31] Ultimately, the court concluded that the Framers implicitly adopted a theory of judicial power that in turn implied the doctrine of precedent, on which the court relied to establish the limits set by Article III. The constitutional directive that the court divined thus rests on the slender reed of a double inference. The court's historical analysis in Anastasoff is unsatisfying in two respects. First, it is unclear that the Framers would have condemned a departure from precedent in the manner authorized by Rule 28(A)(i). Hamilton, Madison, and founding era jurists, while generally in agreement that precedent should play a central role in judicial decisionmaking, did not advocate absolute adherence to precedent. [FN32] Even Blackstone, who was an advocate of the declaratory theory of law, conceded that "this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law." [FN33] As one legal historian explains, "[f]ar from demanding adherence to case law, the classic declaratory theory left ample room for departing from precedent under the fiction that prior decisions were not law in and of themselves but were merely evidence of it." [FN34] One thus might justify Rule 28(A)(i) by arguing that unpublished decisions are "not law." Although this argument would be a prospective application of a traditionally retrospective determination, the "fiction" involved is identical. [FN35] *944 Second, the Eighth Circuit's historical analysis is too cursory. Justice Scalia, a proponent of according history determinative status when divining constitutional meaning, sets forth the appropriate parameters of such an inquiry: "Properly done, the task requires the consideration of an enormous mass of material--in the case of the Constitution and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states." [FN36] Notably absent from Anastasoff are discussions of the ratifying debates in any of the states and of the debates surrounding the drafting of Article III. These debates are crucial because, although one person may have drafted the language, it is ratification by the People that ultimately imbues the Constitution with legitimacy. If the court examined these debates and found nothing, then what is the legitimate inference to draw from such silence? The court inferred a particular meaning because that meaning was "in full view" of the Framers [FN37] and thereby, presumably, the ratifiers. In addition to raising questions as to what constitutes "full view," this method of constitutional interpretation would ultimately render every historical silence pregnant with meaning. Given incomplete historical records and the diverse viewpoints of historical actors, the potential meanings of any given constitutional term--here, "judicial power"--become legion. [FN38] In any case, proponents of attaching new meaning to a constitutional term [FN39] should bear the burden of proving the validity of the new content. [FN40] Although the requisite quantum of proof is undefined, any attempt to establish a general consensus must include more than the handful of jurists and Framers mentioned in the court's analysis. Moreover, the Eighth Circuit's conception of the proper role of precedent does not comport with judicial practice. The Supreme Court has sought to narrow the precedential value of some of its decisions. For example, the Court has limited the precedential value of itssummary*945 dispositions; [FN41] in Mandel v. Bradley, [FN42] Justice Brennan noted in a concurring opinion that "after today, 'appropriate, but not necessarily conclusive, weight' is to be given this Court's summary dispositions." [FN43] The Court has also deviated from Judge Arnold's requirement in Anastasoff that courts justify any departure from precedent. Indeed, the series of per curiam decisions announced by the Court after Brown v. Board of Education [FN44] effectively overruled Plessy v. Ferguson [FN45] without examining Plessy or providing a justification for the departure. These decisions merely cited Brown, which overruled Plessy with regard to public schools but was limited to its facts. [FN46] Although judicial practice certainly is not dispositive of constitutional meaning, it is persuasive authority because it indicates what judges consider constitutionally valid. [FN47] *946 Despite its dubious historical claims, Anastasoff embodies sound policy goals; and perhaps the circuits should abandon their rules restricting the use of unpublished decisions. Article III judges, like the President and Congress, should be accountable for their decisions, and precedent fosters accountability by forcing judges to consider the effects of their decisions on future disputes. [FN48] Precedent also serves such policies as economy, stability, and legitimacy. [FN49] Furthermore, judges may not be competent to exercise discretion ex ante as required by the current rules of publication; judges cannot perfectly predict the future value of the cases before them. [FN50] Thus, there is at least a colorable claim that policy considerations, on the whole, weigh against the circuit rules. However, the Eighth Circuit's holding in Anastasoff rests solely on a descriptive claim about the intent of the Framers. This foundation opens Anastasoff to attack from competing descriptive claims. A more sound, and likely more enduring, way to invalidate Rule 28(A)(i) would have been to seek its repeal through the same process by which it was promulgated. If the ills associated with these rules are as significant as Judge Arnold asserts, [FN51] he should not have encountered difficulty convincing others of the need for new rules. Choosing instead to imbue the central constitutional term "judicial power" [FN52] with a previously unrecognized meaning--while it may have had the immediate salutary effect of invalidating the circuit rule--will likely have wide-ranging effects, some of which may be less desirable. [FN1]. In 1964, the Judicial Conference recommended that judges publish only those opinions that "are of general precedential value." Annual Report of the Director of the Administrative Office of the United States Courts 11 (1964) [[hereinafter Annual Report]. [FN2]. See, e.g., 4thCir.R.36(a) (permitting publication of only those cases fully briefed and presented at oral argument); 6thCir.R.206 (enumerating the criteria for publication of a decision); 7thCir.R.53 (establishing criteria for publication "to reduce the proliferation of published opinions"); 8thCir. R.App. 1 ("It is unnecessary for the Court ...to publish every opinion written."). [FN3]. See, e.g., 7th Cir. R. 53(a) ("It is the policy of the circuit to reduce the proliferation of published opinions.") (emphasis added); Annual Report, supra note 1, at 11 (recommending selective publication "[i]n view of the rapidly growing number of published opinions of the courts of appeals and of the district courts ...and the ever increasing practical difficulty and economic cost of establishing and maintaining accessible private and public law library facilities"). [FN4]. For a synopsis of these rules, see Martha J. Dragich, Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat? 44 Am. U. L. Rev. 757, 762 n.17 (1995). [FN5]. Some circuits accord unpublished decisions no precedential effect whatsoever while other jurisdictions allow citation to these decisions under certain limited circumstances, usually to establish collateral estoppel or res judicata. Compare, e.g., 3d Cir. I.O.P. 5.3 (according unpublished decisions no precedential effect), with 7thCir.R.53(b)(2)(iv) ("Except to support a claim of res judicata, collateral estoppel or law of the case, [unpublished decisions] shall not be cited or used as precedent ...."). [FN6]. 223 F.3d 898 (8th Cir. 2000). [FN7]. Rule 28A(i) reads, in relevant part: Unpublished opinions are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well. 8th Cir. R. 28A(i). [FN8]. Anastasoff, 223 F.3d at 903, 905. [FN9]. Id. at 899. [FN10]. 26 U.S.C.
6511 (1994). [FN11]. Id.
7502 (1994 & Supp. IV 1998). [FN12]. Anastasoff, 223 F.3d at 899. [FN13]. Anastasoff v. United States, No. 4:98CV1291 CDP (E.D. Mo. Aug. 25, 1999) (unpublished). [FN14]. Circuit Judge Heaney and District Judge Magnuson joined Judge Arnold's opinion. Judge Heaney filed a short concurring opinion applauding Judge Arnold for doing "the public, the court, and the bar a great service." Anastasoff, 223 F.3d at 905 (Heaney, J., concurring). He wrote separately to state his opinion that Anastasoff should be heard en banc to reconsider the court's holding in Christie v. United States, No. 91-2375MN (8th Cir. 1992). Id. [FN15]. No. 91-2375MN (8th Cir. 1992) (per curiam) (unpublished). [FN16]. Anastasoff, 223 F.3d at 899. [FN17]. Id. at 905. Judge Arnold had previously voiced criticism of Rule 28A(i). See Richard S. Arnold, The Future of the Federal Courts, 60 Mo. L. Rev. 533, 537-38 (1995); Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 222-26 (1999). [FN18]. Anastasoff, 223 F.3d at 900-04. Because it based its decision on the text of the Constitution, the court did not consider the merits of modern policy justifications for adherence to precedent. See id. at 900-01. [FN19]. See id. at 901. Central to the declaratory theory of law is the concept that judges do not make the law; rather, they are entrusted with the task of finding the law and declaring it. See id. [FN20]. Id. at 902 (quoting The Federalist No. 78, at 439 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). [FN21]. Id. at 902-03. [FN22]. Id. at 903. As Judge Arnold explained, the Framers lamented the lack of an adequate reporting system but nevertheless expected adherence to precedent. Lawyers and judges complied with this expectation by giving precedential effect to unpublished decisions "even when they were established only by memory or by a lawyer's unpublished memorandum." Id. [FN23]. Id. [FN24]. Id. at 904. [FN25]. Id. Judge Arnold added that a decision's unpublished status does not make it "secret." Id. Interested parties can obtain unpublished decisions through the clerk of court or online. Id. [FN26]. Id. [FN27]. Id. [FN28]. Id. at 904-05. [FN29]. Id. at 905. The "burden of justification" requires a court to state the precedent from which it is departing and to provide "convincingly clear" reasons for its departure. Id. This procedure, the court asserted, ensures that the law grows by the "dictates of reason" rather than by judges' simply "chang[ing] their minds." Id. [FN30]. Id. at 901-02 ("The Framers accepted this understanding of judicial power (sometimes referred to as the declaratory theory of adjudication) and the doctrine of precedent implicit in it."). [FN31]. See id. at 904 (stating merely that this practice was "in full view of the framers of the constitution"). [FN32]. For example, Madison argued that "judicial precedents, when formed on due discussion and consideration ...[are] regarded as of binding influence." Letter from James Madison to Charles Jared Ingersoll (June 25, 1831), in The Mind of the Founder: Sources of the Political Thought of James Madison 391 (Marvin Meyers ed., rev. ed. 1981). To the extent that Rule 28A(i) addressed the problem of judicial decisions not based on "due discussion and consideration," it appears consistent with Madison's views regarding precedent. For a discussion of the differing views on precedent during the founding era, see Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 662-66 (1999), which surveys the views of Hamilton, Madison, William Cranch, and James Kent. [FN33]. 1 William Blackstone, Commentaries *69-*70. [FN34]. Lee, supra note 32, at 660; see also Harold Potter, Potter's Historical Introduction to English Law and Its Institutions 275 (A.K.R. Kiralfy ed., 4th ed. 1958) ("In this period the judges did not regard themselves as absolutely bound by earlier decisions."), quoted in Lee, supra note 32, at 660 n.64. [FN35]. In other words, to state that courts must abide by precedent begs the question of exactly what constitutes precedent. [FN36]. Antonin Scalia, Originalism: The Lesser Evil, in Judges on Judging: Views from the Bench 187, 190 (David M. O'Brien ed., 1997). [FN37]. Anastasoff, 223 F.3d at 904. [FN38]. One might wonder whether, when considering some historical silences, judges would be better advised to acknowledge Sigmund Freud's observation that "[s]ometimes a cigar is just a cigar." John Bartlett, Familiar Quotations 570 (Justin Kaplan ed., 16th ed. 1992) (attributing this quotation to Freud). [FN39]. It is at once ironic and troubling that the Anastasoff court held itself bound by Christie, despite its unpublished status and its questionable holding, see Anastasoff, 223 F.3d at 905 (Heaney, J., concurring), and yet the court was willing to redefine an important constitutional provision. One might be understandably puzzled by a court's reserving a question of statutory interpretation for an en banc hearing while committing a question of constitutional import to the judgment of a three-member panel. [FN40]. Cf. Portuondo v. Agard, 120 S. Ct. 1119, 1123-24 (2000) ("We think the burden [of adducing historical evidence] is rather upon [those] who assert the unconstitutionality of the practice ...."). [FN41]. In so doing, the Court exercised "legislative" power to the same extent as a court that limits the precedential value of unpublished decisions. In both cases, a court is prospectively determining the precedential value of its decisions, the only difference being the criteria it uses--summary versus full dispositions as opposed to published versus unpublished opinions. Indeed, Eighth Circuit courts could easily circumvent Anastasoff by issuing summary dispositions instead of unpublished decisions and thereby limiting the precedential value of its dispositions. For a discussion of the Supreme Court's attempts to limit the precedential value of its summary judgment dispositions, see Paul M. Bator, Daniel J. Meltzer, Paul J. Mishkin & David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 730-34 (3d ed. 1988). See also Caban v. Mohammed, 441 U.S. 380, 390 n.9 (1979) (stating that summary dispositions are not entitled to the "same deference" as full dispositions); Colo. Springs Amusement, Ltd. v. Rizzo, 428 U.S. 913, 916 (1976) (Brennan, J., dissenting from denial of certiorari) ("We accord summary dispositions less precedential value than dispositions by opinion after full briefing and oral argument ...."). [FN42]. 432 U.S. 173 (1977). [FN43]. Id. at 180 (Brennan, J., concurring). [FN44]. 347 U.S. 483 (1954). [FN45]. 163 U.S. 537 (1896). [FN46]. Brown, 347 U.S. at 494-95 ("Any language in Plessy v. Ferguson contrary to this finding [that segregated educational facilities negatively impact young African-Americans] is rejected."). For an example of the per curiam decisions that followed Brown, see Gayle v. Browder, 352 U.S. 903 (1956) (mem.), in which the Court affirmed a lower court's decision striking down a local ordinance that provided for segregation on buses, id. at 903 (affirming Browder v. Gayle, 142 F. Supp. 707, 716-17 (M.D. Ala. 1956)). In Browder, the district court applied the spirit of Brown to a new context, and the Supreme Court affirmed. This method of overruling by implication differs markedly from the Eighth Circuit's analysis in Anastasoff; the district court in Browder held that "[e]ven a statute can be repealed by implication. A fortiori, a judicial decision, which is simply evidence of the law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence." Browder, 142 F. Supp. at 716 (emphasis added); see also Perkins v. Endicott Johnson Corp., 128 F.2d 208, 217 (2d Cir. 1942) (Frank, J.) ("We would stultify ourselves ...if--adhering to the dogma, obviously fictional to any reader of its history, that alterations in that court's principles of decision never occur unless recorded in explicit statements that earlier decisions are overruled--we stubbornly and literally followed decisions which have been, but not too ostentatiously, modified.") (footnotes omitted), aff'd, 317 U.S. 501 (1943). [FN47]. See, e.g., Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619, 691- 92 (1994) ("[T]he force of precedent enters into the initial determination of what the correct interpretation is."). [FN48]. See Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 589 (1987) ("[T]he conscientious decisionmaker must recognize that future conscientious decisionmakers will treat her decision as precedent, a realization that will constrain the range of possible decisions about the case at hand."). [FN49]. Lee, supra note 32, at 652-53; see also Schauer, supra note 48, at 595-601 (arguing that reliance on precedent promotes fairness, predictability, better decisionmaking, and stability). [FN50]. The fact that the Eighth Circuit did not publish the Christie decision underscores this concern. One might also worry that, under a regime in which judges may choose ex ante whether to publish decisions, judges might bury hard questions in unpublished decisions. Judges might also seek to deviate from precedent in unpublished decisions, knowing that an unpublished decision will not draw as much attention as a published decision. For a thorough discussion of the harms associated with unpublished decisions, see Dragich, supra note 4. But see Alex Kozinski & Stephen Reinhardt, Please Don't Cite This! Why We Don't Allow Citation to Unpublished Dispositions, Cal. Law., June 2000, at 43 (arguing that policy considerations weigh in favor of denying unpublished dispositions precedential effect). [FN51]. See sources cited supra note 17. [FN52]. Because it focused exclusively on judicial power under Article III, the Eighth Circuit may have missed other constitutional support for its decision. For example, the court could have proceeded on the well-established argument that courts must treat like cases alike. See, e.g., Teague v. Lane, 489 U.S. 288, 315 (1989) (stating that "the harm caused by the failure to treat similarly situated defendants alike cannot be exaggerated"). The circuit rules that restrict precedential effect by precluding litigants from citing similar decisions could result in different outcomes in like cases. Courts have found disparate treatment of litigants to violate the fundamental duty to "administ[er] ... justice with an even hand." Id. (quoting Hankerson v. North Carolina, 432 U.S. 233, 247 (1977) (Powell, J., concurring in the judgment)) (internal quotation marks omitted). END OF DOCUMENT