Legal Times - April 12, 2004

Difference of Opinion; Should judges make more rulings available as precedent?

How an obscure proposal is dividing the federal bench

by Tony Mauro

Federal judges are usually a reticent bunch outside the four corners of their courtrooms and their rulings.

But letters filed in advance of a hearing that took place Tuesday in Washington reveal a judiciary that is passionately and publicly up in arms over an obscure proposal that critics say would drastically change how judges do their jobs and increase litigation costs for clients.

The proposal, known as Rule 32.1 of the Federal Rules of Appellate Procedure, would forbid all appeals courts from placing restrictions on the citation of so-called unpublished opinions.

Unpublished opinions - labeled as such because they are not included in the official volumes of published rulings - are usually brief and unpolished decisions that federal appeals courts use to dispose of 80 percent or more of all cases.

Nine of the 13 federal circuits allow lawyers and judges to cite unpublished opinions, though they vary widely on how much weight the opinions should be given.

But in the circuits that have rules against the use of unpublished opinions - notably the San Francisco-based 9th U.S. Circuit Court of Appeals - dozens of judges, former law clerks and other lawyers have gone on record opposing the idea, urging that circuits be left to devise their own rules.

Allowing citation of unpublished opinions, they say, will force judges to devote substantially more of their scarce time to perfecting routine rulings at the expense of more important issues. They also assert that for lawyers, researching the numerous and often contradictory rulings will add considerably to billable litigation costs and invite selective citation and abuse.

"Because unpublished opinions tend to be thin on the facts and written in loose, sloppy language - and because there's about a zillion of them out there - they will create a veritable amusement park for lawyers fond of playing games," said 9th Circuit Judge Alex Kozinski, the leading opponent of the rule, in a 22-page letter.

Supporters counter that unpublished decisions should be accessible to public scrutiny and citation, and that technological changes have already made most unpublished opinions available online - and thus easy to research.

"It's the most controversial issue in the history of the judicial rule-making process," said Patrick Schiltz, professor at the University of St. Thomas School of Law in Minneapolis. Schiltz, the reporter for the advisory committee conducting the session, said hearings on proposed rules are usually canceled because no one signs up to testify. "This is the first one that hasn't been canceled for lack of interest."

More than 500 letters of comment have been filed with the advisory committee on appellate rules, chaired by Samuel Alito Jr., a judge on the 3rd Circuit. Fourteen judges and lawyers were scheduled to testify - including jurists from the 2nd, 3rd, 7th, 8th and Federal circuits, all in opposition. Representatives of the American Bar Association and the American College of Trial Lawyers also weighed in, supporting the rule.

"Lawyers and judges have not hesitated to cite the words of novelists, comedians, athletes and cartoon characters," said Judah Best, of counsel in the Washington office of Debevoise & Plimpton, who will represent the ABA's litigation section at the hearing. "There is no good reason for judges to treat their own words, or the words of their colleagues, any differently."

Opponents reply that novels and cartoons cannot be taken as the law of a circuit, while opinions can be. They fear that if these cursory rulings can be cited, judges will respond either by getting bogged down writing detailed decisions or reducing decisions to one-liners, as in "affirmed." Neither alternative, they say, will be good for the courts or the public.

"Judges will certainly feel compelled to devote more time and resources" to unpublished opinions, said Chief Judge H. Robert Mayer of the Federal Circuit. Litigants, in turn, will have to spend more time and money researching the unpublished opinions, even though they have little value.

From the New York-based 2nd Circuit, where unpublished opinions are called summary orders, Chief Judge John Walker Jr. wrote that "permitting citation of every written opinion promises to add considerable extra work for judges and lawyers with very limited, if any, benefit to the adjudicatory process."

Walker noted that a large number of the cases decided by appeals courts are brought by prisoners without counsel or involve "insubstantial sentencing and immigration" issues.

Walker wrote on behalf of himself and 18 other active and senior judges on the 2nd Circuit. Four other active judges did not join.

At the Chicago-based 7th Circuit, Judge Frank Easterbrook, who favors the new rule, said that because unpublished opinions are generally available on Westlaw, Lexis and in the Federal Appendix, the concern about increased litigation costs "no longer applies." Easterbrook also thinks that barring citation of opinions "implies that judges have something to hide."

Easterbrook noted that none of the nine circuits and 21 states that allow citation of unpublished opinions has urged the committee to defeat the proposed rule. "From that quarter, no protest has been heard."

The 1st Circuit in Boston is the latest to allow citation of unpublished opinions in limited instances, though it warns they will be considered "for their persuasive value but not as binding precedent." The D.C. Circuit has probably the most expansive rule, allowing unpublished decisions issued since 2002 to be cited as precedent. The 2nd, 7th, 9th, and Federal Circuits still prohibit all forms of citation.

'The crazy uncle'

One byproduct of the debate has been a revealing and, some say, unflattering look at how unpublished opinions are produced. The practice began roughly 40 years ago as a timesaving device for overburdened judges.

"Unpublished dispositions - unlike opinions - are often drafted entirely by law clerks and staff attorneys," said Kozinski in his letter to the committee. "There is simply no time or opportunity to fine-tune the language of the disposition."

As a result, Kozinski added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."

Given that unpublished opinions resolve real cases for real litigants, Kozinski's description of them as so much inedible sausage has not sat well, said Stephen Barnett, emeritus professor of law at the University of California law school.

"A lot of people are very upset at Kozinski because of the way he badmouthed these dispositions," said Barnett, who favors the rule with modifications.

The committee's Schiltz also asked, "Isn't the best way to deal with such sausage to stop making it?" He called unpublished opinions "the crazy uncle in the attic of the federal judiciary," and said rules barring their citation are like "the whispered instructions to party guests not to hurt the host's feelings by mentioning that uncle."

Judge Richard Posner of the 7th Circuit, who agrees with Kozinski that the rule should not be adopted, said it is impractical to think that the cure for hurried unpublished opinions is to improve them. In an e-mailed response to questions on the subject, Posner offered a classic economic analysis of the issue:

"Ideally, yes, one wants top quality. But the ideal is rarely attainable in any area of human activity. It would be nice if every automobile had the quality of a Lexus or a Mercedes. But because resources are limited, uniform highest quality is not attainable. The same is true in adjudication. Judges and their staffs have limited time, and they have to allocate it in such a way as to produce the best feasible product. If they reallocate time from their published opinions to their unpublished, the quality of the former will suffer."

Kozinski, according to several California attorneys, helped orchestrate the letter-writing campaign that resulted in an avalanche of letters to the committee from bar associations, public defenders, private practitioners and even the likes of the American Civil Liberties Union of Southern California, as well as Kozinski's ideological opponent and 9th Circuit colleague Stephen Reinhardt.

"The number of citable cases issued by each circuit would increase by approximately four- to fivefold," said ACLU lawyer Peter Eliasberg in a letter to the committee. "Those organizations with greater resources such as lots of young associates billing a paying client by the hour would have a huge advantage."

But Barnett, like Easterbrook, said that concern is overstated. Barnett surveyed public defenders in circuits where unpublished opinions may be cited, and he said they were unanimous in stating that the larger universe of rulings added only minimally to their research time, if at all.

Judge A. Wallace Tashima is only one of 38 active and senior 9th Circuit judges to write to the committee in favor of the rule. Tashima said he was moved to write to "counterbalance a letter-writing campaign by opponents of the rule," though he did not cite Kozinski by name. Kozinski declined to comment.

May it please the court

The uniformity of views from the 9th Circuit makes Barnett suspicious. "Is this the 9th Circuit, or is it Russia?" Barnett asked in remarks prepared for the hearing. He suggested that California lawyers, knowing the strong opposition of the appeals judges, may have wanted to "please the court" by stating their opposition to the rules, while those who favor it are choosing to remain silent rather than "disappoint the judges before whom they practice."

The hearing represents the next step in a lengthy rule-making process that has taken five years. Then-Solicitor General Seth Waxman proposed the rule during the Clinton administration, though a call from Kozinski led new Solicitor General Theodore Olson to shift his office's position to neutral.

In 2003, the nine-member committee voted in favor of ending no-citation rules, and there is still strong sentiment in that direction.

With Tuesday's hearing over, the committee will vote again on the issue, this time on the specific wording that was submitted for public comment. If approved, Rule 32.1 still must go before the full rules committee, the Judicial Conference, the Supreme Court and, eventually, Congress itself for approval.

For its part, the Supreme Court has no equivalent of unpublished opinions, though on rare occasions individual justices will issue "in-chambers opinions" on cases that have not been argued orally. Those opinions have been published in the U.S. Reports since 1969 and more recently on its Web site. A series of volumes collecting all the court's in-chambers opinions since 1925 will be published this summer.

Schiltz, the committee's reporter, is recommending that this time the rule be tabled.

Through the momentum of technology and a federal law that will require all courts' opinions - including the 11th Circuit's - to be online later this year, Schiltz thinks change will happen on its own. Rules against citation are "on their way to extinction," he said. "Whatever harm they cause, they cause less of it each year."

Tony Mauro is U.S. Supreme Court reporter for American Lawyer Media, parent of the Daily Business Review.