Arkansas Law Review
*847 ANASTASOFF V. UNITED STATES: UNCERTAINTY IN THE EIGHTH CIRCUIT-IS THERE A CONSTITUTIONAL RIGHT TO CITE UNPUBLISHED OPINIONS?
Copyright (c) 2002 Arkansas Law Review, Inc.; Drew R. Quitschau
In the United States Courts of Appeals, the thirteen circuits have adopted thirteen different rules limiting the citation of unpublished opinions. In the Eighth Circuit, Rule 28A(i) provides in pertinent part: “Unpublished opinions are not precedent, and parties generally should not cite them.” [FN1] In practice, this rule is frustrating because it prevents litigants from citing unpublished opinions that are directly on point. In theory, the rule is alarming because it abridges free speech and authorizes courts to ignore their past acts.
No-citation rules and selective publication plans were implemented in the 1970s to increase judicial efficiency and help the courts of appeals manage burgeoning caseloads. [FN2] The plans have been successful, but at too great a cost: the court system has been streamlined by truncating the obligations of the courts and the rights of litigants. As indicated above, the plans deprive litigants of the ability to cite certain cases and relieve courts of their duty to consider past acts. The inevitable effect of the rules is that similarly situated parties are treated differently, predictability in the system is decreased, and litigants are frustrated. Ultimately, efficiency is achieved by compromising stability, equality, and fairness.
Not surprisingly, no-citation rules have been shrouded in controversy since their very inception. Legal scholars criticize the rules because they allow courts to contravene the well-established doctrine of stare decisis. Most judges, on the other hand, view the rules as an indispensable asset; they see no problem prohibiting the use of cumulative, valueless, opinions.
*848 In Anastasoff v. United States, [FN3] Judge Richard Arnold raised the stakes in the debate and declared the Eighth Circuit no-citation rule unconstitutional. [FN4] According to Judge Arnold, the rule “expands the power of the judiciary beyond the limits set by Article III.” [FN5] Judge Arnold reasoned that the doctrine of stare decisis was integral to the Framers' understanding of judicial power, and as a result, the doctrine was impliedly written into the United States Constitution. [FN6] Judge Arnold explained that the Eighth Circuit no-citation rule is unconstitutional because it allows courts to depart from stare decisis without sufficient justification. [FN7]
Judge Arnold's opinion sent shockwaves through the legal community [FN8]-it was the first time a no-citation rule had been declared unconstitutional. Not surprisingly, the decision received mixed reviews. One Ninth Circuit judge commented that, “[a]s a matter of constitutional doctrine [the decision] is hogwash,” [FN9] while the executive director of Trial Lawyers for Public Justice stated, “This is a brilliant and very important opinion . . . .” [FN10]
Upon rehearing en banc, the United States Court of Appeals for the Eighth Circuit vacated Judge Arnold's decision because the controversy between the parties had been resolved, and as a result, the issue was moot. [FN11] Consequently, the Eighth Circuit no-citation rule remains intact, but the court candidly acknowledged that “the constitutionality of that portion of rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this circuit.” [FN12] Despite this ultimate outcome, this note argues that Judge Arnold was correct and that the no-citation rule is unconstitutional because: (1) it violates stare decisis; and (2) it abridges free speech and *849 denies meaningful court access.
II. STATEMENT OF FACTS
In 1992, the Internal Revenue Service (IRS) withheld $9525 in federal income taxes from the earnings of Faye Anastasoff, an elementary school teacher in the Clayton, Missouri School District. [FN13] Anastasoff's taxes were deemed paid on April 15, 1993 [FN14] because tax payments made through withholdings from an individual's wages are deemed by law to have been paid on April 15 of the year following the year in which they were withheld. [FN15] However, Anastasoff only owed $3089 and therefore sought a refund of $6436. [FN16]
On April 13, 1996, within three years after the 1992 taxes were deemed paid, Anastasoff requested a refund by sending her 1992 Form 1040 federal income tax return and administrative claim for refund of withheld tax (one document) [FN17] to the Internal Revenue Center in Kansas City, Missouri. [FN18] On April 16, 1996, three years and one day after the 1992 federal income tax return was due, the IRS received Anastasoff's 1992 Form 1040 refund claim. [FN19] On July 31, 1996, the IRS sent Anastasoff a Notice of Claim Disallowance, refusing to refund her overpayment of $6436 because the Internal Revenue Code (I.R.C.) precludes a refund of tax paid more than three years before the claim is made. [FN20]
The timeliness of the refund claim depended upon the interpretation and application of I.R.C. sections 6511 and 7502. *850Section 6511 imposes two limitations on a refund claim: (1) a time limit for filing the refund claim; and (2) a look-back limitation on the amount of tax that can be refunded. [FN21] The time limit for filing a refund claim is imposed by section 6511(a), which provides in part:
Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time that return was filed . . . . [FN22] The look-back limitation on the amount of tax that can be refunded is imposed by section 6511(b), which provides in part:
If the claim was filed by the taxpayer during the 3-year period prescribed in subsection (a), the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years. [FN23]
Anastasoff argued that because the refund claim and the return were the same document, the refund claim was necessarily filed within three years of the filing of the return as required by I.R.C. section 6511(a). [FN24] Further, she asserted that the “timely-mailing-is-timely-filing” provision of I.R.C. section 7502 (the “Mailbox Rule”) should save her claim under the substantive look-back window of section 6511(b) because the Mailbox Rule [FN25] is applicable whenever necessary to fulfill its remedial purpose: saving taxpayers from the vagrancies of the postal system. [FN26] The United States argued that section 7502 did not *851 save Anastasoff's claim under the substantive look-back window of section 6511(b) because the mailbox rule only applies to a document that was mailed on or before its prescribed filing date but received after that date. [FN27] Here, the United States contended that section 7502 did not apply to Anastasoff's claim because the claim was not received after its prescribed filing date, but was, on the contrary, timely filed under section 6511(a). [FN28]
III. PROCEDURAL HISTORY
On July 29, 1998, Faye Anastasoff commenced an action in the United States District Court for the Eastern District of Missouri to recover the $6435 in overpaid taxes. [FN29] On August 25, 1999, the district court rejected Anastasoff's argument, denied her claim for refund, and entered summary judgment for the United States. [FN30] The district court noted that because the refund claim and the return were the same document, the refund claim was necessarily filed within three years of the filing of the return as required by I.R.C. section 6511(a). [FN31] Consequently, the plaintiff could not benefit from the Mailbox Rule because her refund claim was timely filed. [FN32] As a result, *852I.R.C. section 6511(b) precluded her from recovering the claimed overpayment, which was considered paid on April 15, 1993 because this date was more than three years before the April 16, 1996 filing date of her refund claim. [FN33]
On October 22, 1999, Anastasoff appealed to the United States Court of Appeals for the Eighth Circuit and continued to argue that the Mailbox Rule should be applied to save her claim. [FN34] The court, however, had rejected precisely the same legal argument eight years earlier in Christie v. United States. [FN35] Although Christie was the only case on point, Anastasoff made no effort to distinguish it and instead contended that the court was not bound by Christie because it was an unpublished opinion and thus not precedent under Eighth Circuit Rule 28A(i). [FN36]Rule 28A(i) provides:
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. [FN37]
The constitutionality of the no-citation rule was not raised in either party's briefs, but a single appellate panel of the Eighth Circuit Court of Appeals, led by Judge Richard Arnold, [FN38] found *853 the rule unconstitutional under Article III of the United States Constitution because it “purports to expand the judicial power beyond the bounds of Article III.” [FN39] The court found that Anastasoff's interpretation of section 7502 was directly addressed and rejected in Christie and that the no-citation rule did not free the court from its obligation to follow that decision. [FN40] Although a Second Circuit case directly conflicted with Christie, the panel believed itself bound by Christie as an authoritative in-circuit precedent and thus considered itself without authority to decide whether the Second Circuit's rule was preferable to the rule of Christie. [FN41] Accordingly, the court affirmed the decision of the district court. [FN42]
Anastasoff filed a petition for rehearing en banc and alleged that the panel's constitutional holding was in error. [FN43] In response to the petition for rehearing, the United States informed the court that it intended to pay Anastasoff's claim. [FN44] Thereafter, the government did in fact pay the claim, [FN45] and the IRS announced abandonment of its position based on Christie and acceptance of the Second Circuit rule. [FN46]
*854 As a result, the government requested that the Anastasoff case be dismissed because the case was now moot. [FN47] Against the objections of Faye Anastasoff, the court agreed with the government and held that the case was moot because there was no longer any dispute over the tax refund or the controlling interpretation of the I.R.C. provision. [FN48] The court vacated the previous judgment of the single appellate panel and remanded the case to the district court with direction that it should vacate its judgment. [FN49] With respect to the constitutionality of the circuit's no-citation rule, the court simply lamented:
The controversy over the status of unpublished opinions is, to be sure, of greatest interest and importance, but this sort of factor will not save a case from becoming moot. We sit to decide cases, not issues, and whether unpublished opinions have precedential effect no longer has any relevance for the decision of this tax refund case . . . [Accordingly], [t]he constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no precedential effect remains an open question in this Circuit. [FN50]
*855 IV. HISTORICAL DEVELOPMENT
A. The History of Unpublished Opinions [FN51]
1. The Advent of Case Reporting in America
In colonial America, judicial decisions were relatively few in number, and many of the fields of law we know today did not exist. [FN52] As a result, lawyers could easily remember important decisions and “usually consulted only a small number of highly familiar sources, including their own notes of important cases.” [FN53] The most important sources of law were treatises that restated the law, [FN54] such as the commentaries of Coke [FN55] and Blackstone. [FN56] Consequently, case reporting was a haphazard enterprise and was left primarily to the legal entrepreneurs and private venturers of the day. [FN57]
*856 In 1789, the first fully-developed publication of judicial opinions originated in America. [FN58] The first reports consisted of lawyers' notes published as a public service [FN59] and thus bore little resemblance to modern reports. [FN60] However, once publication of opinions caught on, the quantity of legal materials available to lawyers rapidly increased. [FN61] “As early as the 1820s, the legal profession complained about the rapidly multiplying law reports and treatises.” [FN62] The increase in litigation and growing complexity of the law led to continued growth in the publication of opinions. [FN63] “By the 1880s, nearly 1000 decisions were issued annually, [FN64] far too many to summarize neatly in treatises or carry in one's memory.” [FN65]
*857 2. Unpublished Opinions in the Federal Courts
In 1894, the Federal Reporter began publishing cases. [FN66] For the next sixty years, federal appellate courts authorized publication of virtually every judicial opinion they produced. [FN67] Even one-word memorandum decisions were published. [FN68] During this time, legal professionals realized that the practical limit on lawyers' and judges' ability to obtain and assimilate judicial opinions was dangerously near being exceeded or already was exceeded. [FN69] The concern was that the common law in the United States “would be crushed by its own weight if the trends continued unabated.” [FN70] Recognition of the problem led to an examination of ways to streamline the appellate process, including consideration of whether the number of published opinions should be reduced. [FN71]
In 1964, the Judicial Conference of the United States addressed concerns about the ever-increasing case-loads of the United States Circuit Courts of Appeals [FN72] and issued a general recommendation that the federal appellate courts limit publication only to those opinions “which were of general precedential value.” [FN73] This recommendation was unsatisfactory, however, as it did not provide sufficient detail to guarantee consistency among the courts. [FN74]
As a result, by 1972, the Judicial Conference was again striving for more effective publication rules. [FN75] The Federal Judicial*858 Center [FN76] reported that there was “widespread agreement that too many opinions [were] being printed and published, but no consensus about how to limit publication.” [FN77] The Board of the Federal Judicial Center recommended that the Judicial Conference direct each circuit council to review its publication policy and implement certain modifications. [FN78] At its October 1972 session, the Judicial Conference approved the circulation of the Center's report to all circuits and required that each circuit develop an opinion publication plan. [FN79] A no-citation rule was to be included with this plan. [FN80]
Meanwhile, work on model standards continued at the Judicial Center, and after revisions, the Center published a report authored by the Advisory Council for Appellate Justice. [FN81] This *859 report set forth a model rule [FN82] regarding standards for publication, procedures for deciding which opinions should be published, and the desirability of allowing citation of unpublished opinions. [FN83]
Shortly thereafter, each circuit submitted its revised rules to the Judicial Conference, and by 1974, each federal circuit had adopted its own unique plan for further limiting the publication of opinions. [FN84] Although each of the plans differed considerably, there were two similarities among them: (1) opinions that had no precedential value would not be published; and (2) all circuits designated at least some of their opinions as having no precedential value. [FN85] While the proposed plans were not identical, the Conference noted that their divergence would be a useful experimental tool in arriving at a settled position on publication. [FN86]
3. The Current State of Published Opinions in the Circuits
The present state of the no-citation controversy is much as the Judicial Conference left it in 1974. [FN87] The federal appellate courts do not employ uniform rules regarding the publication of opinions, and as a result, experimentation continues. [FN88] Each circuit has adopted its own publication plan, [FN89] and each differs in *860 its technical particulars and in its approach to determining whether an opinion will be published and whether that opinion will have precedential effect.
The plans effectively reduced the number of published opinions in the federal circuits. In the thirty years since their adoption, the percentage of published opinions has steadily declined. [FN90] Prior to 1964, there were relatively few unpublished opinions in any of the circuits. [FN91] By 1979, sixty-two percent of circuit opinions were unpublished. [FN92] Currently, over seventy-five percent of all final decisions by the courts of appeals go unpublished. [FN93] However, the number of cases being disposed of in the courts continues to grow, [FN94] and as a result, the federal system has taken further steps to deal with the problem of volume. [FN95]
*861 B. The Policy Debate
Since their very inception, limited publication plans and no-citation rules have generated controversy. Traditionally, the rules have received strong support from judges because they tend to see the rules as a necessary part of the job. [FN96] Many legal scholars, on the other hand, believe unpublished opinions cause a variety of systematic problems. [FN97]
1. The Argument in Favor of the Rules
a. Limited Publication Plans
Clearly, the primary purpose for implementing limited publication plans was to help courts deal with burgeoning caseloads. [FN98] The rationale behind the plans was based on two *862 major premises: (1) it is possible to distinguish between those opinions that are worthy of publication (i.e., those serving the “law-making” function) and those opinions that are not (i.e., those serving the “dispute-settling” function); [FN99] and (2) publication of all opinions is excessively costly to the courts and consumers in terms of production and research resources. [FN100]
According to the first premise, appellate decisions have two major functions. The dispute-settling function disposes of litigation, corrects district court errors, and explains results to the parties and decision-maker below. [FN101] The law-making function establishes and explains changes in the law, comments upon legal and social problems, and criticizes existing legal doctrine. [FN102] Proponents of limited publication plans believe that opinions serving the dispute-settling function have value only to the parties in the case, and no value to the public. [FN103] Accordingly, because publication of these opinions serves no general purpose, there is no need for full publication.
According to the second premise, publication of all opinions is excessively costly. [FN104] These costs can be roughly divided between the cost of producing published opinions and the cost of consuming published opinions. Under this premise, production costs can be reduced by limited publication because a judge will spend less time writing an unpublished opinion (which is important only to the parties) because he will not have to explain *863 the facts of the case or identify all of the issues raised. [FN105] Consumption costs will be reduced by limited publication because only those opinions with precedential value will be published; thus, lawyers and judges will spend less time sifting through opinions that “add nothing to the corpus of the law.” [FN106]
b. No-Citation Rules
No-citation rules are justified on the basis that they are a necessary complement to limited publication plans. [FN107] The purpose of the publication plans, decreasing the cost of producing and consuming judicial opinions, would be frustrated if citation to unpublished opinions were permitted. [FN108] For example, one of the principal arguments in favor of limited publication is that judges writing only for the parties and the court below need not fully expound all of the facts and arguments from the case. [FN109] If citation to unpublished opinions were permitted, however, judges would feel compelled to explain the facts and arguments in their entirety. [FN110] The benefits of limited publication plans to judicial economy would thus be lost. [FN111] In addition, if citation to unpublished decisions were permitted, limited publication would not decrease consumption costs because legal researchers would be required to search all unpublished opinions for relevant case law.
Finally, limited publication, absent no-citation rules, would give certain litigants an advantage because it would create differential*864 access to unpublished opinions. [FN112] Those who regularly practice in a particular court would benefit because unpublished opinions are distributed to the parties to the case. One concern is that repeat litigants, such as government attorneys, would maintain a file of these opinions, which would essentially be unavailable to future opponents. [FN113] Therefore, proponents argue that citation to unpublished opinions should be prohibited so that some parties are not benefited at the expense of weaker, less informed, or less well-funded parties.
2. The Argument Against the Rules
Opponents of limited publication plans and no-citation rules question the rationale upon which the rules are based. [FN114] First, they claim that opinions serving the dispute-settling function do have some value to the public and should be published because the weight of precedent on a point of law serves to confirm that point of law, making it more difficult to overturn the particular legal principle at issue. [FN115] Thus, the sheer number of affirmations of a particular point of law allows attorneys to rely on the stability of that legal doctrine with greater confidence. [FN116]*865 Second, later cases help flesh out a precedent and make it more understandable. [FN117] These later elaborations are important, even though they do not make law, because a group of cases makes it easier to understand the principles at issue. [FN118] Such fleshing out by the application of a principle to different facts is vital to common law adjudication. [FN119]
Further, opponents of the rules maintain that even if some opinions do not have value, the theoretical distinction between the dispute-settling and law-making functions of appellate opinions is unworkable because the distinction is too hard to make in practice. [FN120] As one scholar noted, “[j]udges are the last persons who should be authorized to determine which of their decisions should be long remembered.” [FN121]
Two additional arguments are advanced against limited publication plans and no-citation rules. First, it is claimed that the rules interfere with responsible judicial decision-making by insulating a substantial portion of the court's product from the demands of stare decisis, [FN122] essentially undermining the courts' *866 obligation to develop and elaborate upon the law. [FN123] For example, a court may use non-publication to deliberately suppress a law-making opinion when the court wishes to decide a case on an impermissible basis without having its rationale extend to subsequent cases.
Second, some scholars assert that the rules have an adverse effect on the degree to which a court is accountable to other courts and the public at large. Accountability to the United States Supreme Court is weakened because an unpublished opinion is less likely to be reviewed by the high court. [FN124] Accountability to legal consumers is diminished because unpublished opinions that cannot be cited will generally not receive critical commentary; this, of course, is due to the fact that the opinions will go unnoticed. [FN125] Finally, rules that rob an opinion of its precedential value have the inherent effect of diminishing a court's internal accountability to itself, its colleagues, and its office. [FN126]
*867 V. ANALYSIS
A. Judge Arnold Correctly Struck Down the Eighth Circuit's No-Citation Rule as an Unconstitutional Expansion of Article Three Power.
In Anastasoff v. United States, Judge Arnold struck down the Eighth Circuit's no-citation rule as unconstitutional because it expands the judicial power beyond the limits set by Article III of the Constitution. [FN127] In reaching this conclusion, Judge Arnold proclaimed that: (1) judges have a constitutional duty to follow precedent because the doctrine of stare decisis is an inherent limitation on Article III power; [FN128] and (2) because the no-citation rule allows judges to depart from precedent, the rule expands the judicial power beyond the limits set by the Constitution. [FN129]
Judge Arnold contended that the doctrine of precedent was impliedly written into Article III of the Constitution because the Framers had always understood the judicial power to be limited by stare decisis. [FN130] According to Arnold, this proposition is evidenced by the following facts: (1) the doctrine of precedent was well-established by the time the Framers gathered in Philadelphia; [FN131] (2) the doctrine was an immemorial custom; [FN132] and (3) the Framers had inherited a very favorable view of precedent from the seventeenth century due to the writings of Coke and the effectiveness of the doctrine in past struggles of the English people. [FN133] In addition, the Framers did not abandon the doctrine at the time of the framing because they saw it as a necessary limitation on judicial power. [FN134]
*868 According to Judge Arnold, the Framers' acceptance of the declaratory theory of adjudication is compelling proof that they continued to view the doctrine of precedent as indispensable. [FN135] The declaratory theory of adjudication, as pronounced by Hale, Coke, and Blackstone, states that it is a judge's duty to expound and maintain old law, not to pronounce new law. [FN136] The Framers believed that courts should follow existing case law because doing so increased stability in the law [FN137] and prevented a dangerous union of the legislative and judicial powers. [FN138] Because the declaratory theory still held sway during the time that the Framers gathered in Philadelphia, [FN139] Judge Arnold concluded that the Framers believed that the doctrine of precedent would continue to be necessary in maintaining stability and the separation of powers. As a result, it was impliedly written into the Constitution as a limit on judicial power.
Judge Arnold persuasively asserted that the Eighth Circuit's no-citation rule is an unconstitutional expansion of Article III power because it allows the court to ignore the limits imposed by the doctrine of stare decisis. [FN140] Under the no-citation rule, any opinion marked “unpublished” is not precedent. [FN141] As a result, the court could depart from the law set out in a prior decision, no matter how binding it may appear, without any reason for differentiating between the two cases. Judge Arnold saw this type of discretion as inconsistent with the doctrine of stare decisis, which requires courts to state a special justification when departing from precedent. [FN142] Judge Arnold ultimately concluded that “[r]ule 28A(i) expands the judicial power beyond the limits set by Article III by allowing [the court] complete discretion to determine which judicial decisions will bind [it] and which will *869 not.” [FN143] More specifically, the rule allows judges in the Eighth Circuit to ignore their past actions, prevent decisions from becoming precedent, and depart from precedent without distinguishing or overruling prior decisions.
B. The Eighth Circuit's No-Citation Rule is Unconstitutional Because It Violates Stare Decisis.
1. The No-Citation Rule Violates Stare Decisis Because It Authorizes a Court To Ignore Its Past Actions.
A court's power is limited by the doctrine of stare decisis. Stare decisis [FN144] is a presumption that courts will treat like parties alike by following similar previous judicial decisions when deciding legal questions. [FN145] Adherence to the doctrine requires a court to consider previously decided cases to determine if any of them constitute a precedent for the case at hand. [FN146] If the facts of a prior case are prima facie similar to those of the case before the court, [FN147] the ratio decidendi, [FN148] or principle, of the prior case has some degree of binding force upon the court. [FN149] In other *870 words, a presumption is raised that the court will treat similarly situated parties alike by applying the ratio decidendi of the prior case to the current case.
Because the no-citation rule states that “unpublished opinions do not have precedential value,” [FN150] a court in the Eighth Circuit is excused from considering and following previously adjudicated decisions that have been designated as unpublished. This violates a court's general duty under the doctrine of stare decisis to consider previously decided cases. Even more importantly, the rule allows a court to ignore a prior case that involves parties similarly situated to those presently before the court. As a result, the presumption that the court will treat like parties alike is disregarded, and the court appears free to treat similarly situated parties differently.
Contravention of the doctrine of stare decisis violates the Constitution [FN151] and federal common law and defeats the numerous and well-reasoned rationales for the doctrine. Justifications for following the doctrine include increased stability in judicial opinions, equality, efficiency, and uniformity, [FN152] and the fact that courts have adhered to the doctrine for well over 700 years. [FN153] As one court stated, “[t]his doctrine, wise or unwise in its origin, has worked itself by common acquiescence into the *871 tissues of our law. It is too deeply imbedded to be superseded or ignored.” [FN154]
2. The No-Citation Rule Violates Stare Decisis Because It Allows a Court To Prevent Its Decisions from Becoming Precedent.
The Eighth Circuit's no-citation rule violates stare decisis because it allows a court to designate its decisions as having no precedential value. However, it is clear that “one thing a judge cannot do is prevent his decision on a point of law from constituting precedent.” [FN155] The reason: it is not wholly the province of the ruling judge to decide the precedential value of his or her decision. Rather, the precedential value of a decision is determined by a subsequent court that discerns the ratio decidendi of the case and considers it in light of other existing case law. [FN156] The responsibility of determining the precedential value of the case is shifted from the ruling court to a subsequent court because the ruling court may not be able to determine correctly whether the case has precedential value to future courts. For example, many decisions are deemed “unpublished” because the ruling judge decided that they involved merely questions of fact, and thus had no precedential value. [FN157] However, this is a dangerous practice because there is no clear rule for determining *872 whether a decision involves only questions of fact. [FN158] An opinion that contains no express reasoning, [FN159] or that is rendered without an enunciated rule, [FN160] may nonetheless possess precedential value because each case contains a principle that can be discovered with proper analysis. [FN161]
Another reason why the precedential value of a case can only be recognized by a subsequent court is the fact that the principle of the case may have a different meaning at a later date, when it is interpreted in light of its successor cases. [FN162] While the interpretation of a case frequently means no more than the ascertainment of its ratio decidendi, it may mean a great deal more. [FN163] It may involve: (1) the ascertainment of the ratio decedendi; [FN164] (2) a consideration of that ratio decedendi in the light of the facts of the case; [FN165] (3) a consideration of observations made by judges in later cases; [FN166] (4) the ascertainment of the ratio decedendi of later cases; [FN167] and (5) the formulation of a rule of law based on a number of cases. [FN168] It may then appear that the principle of the case being interpreted has a different meaning than it did before the case was interpreted in light of its successor cases. [FN169] For these reasons, a judge should not be allowed*873 to determine the precedential value of a case over which he presides.
In summary, the no-citation rule permits a court to decide that a case upon which it has just rendered a decision has no precedential value. When the court labels the decision “unpublished,” subsequent courts are excused or prohibited from considering the case. As a result, the rule violates stare decisis because it allows Eighth Circuit courts to prevent their decisions from constituting binding precedent.
3. The Eighth Circuit Rule Violates Stare Decisis Because It Allows a Court to Depart from Precedent Without Distinguishing or Overruling a Prior Decision.
The Eighth Circuit no-citation rule violates stare decisis because it allows a court to disregard precedent without distinguishing or overruling it. Stare decisis is a principle of policy, not a mechanical adherence to prior decisions. [FN170] As a result, there are some situations in which courts are permitted to depart from the doctrine. First, a court does not have to follow the principle of a previous case if the facts from that case are not prima facie similar to the current case (this is known as distinguishing a precedent). [FN171] Second, even if the parties in the current case are similarly situated to the parties in the prior case, the presumption of stare decisis can be rebutted when sufficient reasons exist to outweigh the advantages of following precedent (this is known as overruling a precedent). [FN172] As one court stated:
*874 Stare decisis, to its credit, is a far more subtle and flexible concept than some of those who give it slavish adherence suggest. Its limitations are inherent, for the stability it espouses must co-exist with both the dynamics of an evolving society and the accruing wisdom born of repeated injustices which a particular ruling has wrought. To that end, its temper partakes more of the malleability of gold than the rigidity of steel. [FN173]
The key to all of this, however, is the notion that courts are very reluctant to depart from precedent, [FN174] and when they do, it is done on a case-by-case basis through a careful process of weighing the advantages and disadvantages of following a particular precedent. The no-citation rule violates this practice because it allows courts to ignore an unpublished opinion that may have precedential value without conducting the careful analysis that would be involved in the traditional distinguishing or overruling of a case. Quite simply, if the case is labeled “unpublished,” it may be ignored. A court never distinguishes the case because the facts are never examined. A court never overrules the case because it never weighs the advantages of following the doctrine against the reasons for departing from it. As a result, the Eighth Circuit's rule violates stare decisis because it allows a *875 court to depart from precedent without distinguishing or overruling the prior case.
C. The Eighth Circuit's No-Citation Rule is Unconstitutional Because It Violates the First Amendment Right to Free Speech and Meaningful Court Access.
1. The No-Citation Rule Abridges Free Speech.
The Eighth Circuit's no-citation rule violates the First Amendment because it prohibits the citation of unpublished opinions for the sake of judicial efficiency and thus imposes a content-based restriction on speech without a compelling state interest for doing so. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” [FN175] When the government abridges speech because of its content, that is, the ideas or information contained in it, there is a strong presumption that the regulation is unconstitutional. [FN176] When the government imposes a content-based regulation on speech, the courts must apply the most exacting strict scrutiny, which means that the government bears the burden of showing that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. [FN177]
The Eighth Circuit's no-citation rule is a government regulation aimed at the content or communicative impact of speech. The speech being prohibited is the citation of unpublished opinions, and the content of the speech is the case itself, which is a record of how the court previously acted. As a result, the rule is a content-based regulation.
If the constitutional guarantee of free speech means anything, it means that “the government has no power to restrict expression because of its message, its ideas, its subject matter, or content.” [FN178] As explained above, if the government seeks to restrict*876 the content of speech, there must be a compelling state interest for doing so and the means of restricting the speech must be narrowly drawn to achieve the desired end. The Eighth Circuit's justification for preventing the citation of unpublished opinions is judicial efficiency. In other words, litigants should not be allowed to inform the court of its past acts because the court has insufficient resources to examine all of that information. The rationale behind the Eighth Circuit rule is simply inadequate to rise to the level of a compelling interest because paperwork reduction, docket management, and judicial efficiency have been declared state interests insufficient to overcome personal rights. [FN179]
In addition, the rule is not sufficiently tailored to achieve the desired end because limiting the citation of unpublished opinions is not the least restrictive method of increasing judicial efficiency. An increase in clerkships and judgeships would be just as effective and would not burden the rights of litigants by preventing the citation of unpublished opinions. In essence, the no-citation rule is a content-based restriction that is neither justified by a compelling state interest nor narrowly tailored, and as a result, violates the First Amendment.
2. The No-Citation Rule Violates the Right to Court Access.
The right to court access is well-founded in American history:
The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship. [FN180]
Although the courts initially struggled to find a constitutional birthplace for the right, [FN181] it is now well-established that *877 the right is encompassed by the First Amendment right to petition the government. [FN182] The right to meaningful court access not only protects the ability to get into court [FN183] but also ensures that such access is “adequate, effective, and meaningful.” [FN184] Most courts have interpreted this to mean that the state cannot hinder or impede a litigant's effort to pursue a legal claim. [FN185]
The Eighth Circuit's no-citation rule contravenes the right to meaningful court access because it hinders a litigant's efforts to vindicate his or her rights in court. By forbidding the citation of unpublished opinions, the rule prevents a litigant from informing the court of its prior acts. This is a costly prohibition under the doctrine of stare decisis. Pursuant to the doctrine, a court that initially desires to rule against a litigant may be persuaded to rule in favor of that litigant when informed of how it previously treated a similarly situated party. By preventing a person from citing an unpublished opinion, the rule not only hinders, but may completely defeat a litigant's claim.
Another reason why the no-citation rule violates the right to court access is that the no-citation rule is applied indiscriminately. The rule applies to criminal and civil defendants alike. Thus, a criminal defendant may be prevented from citing an unpublished opinion even if he or she is attempting to vindicate his or her fundamental right to life and liberty. This raises inherent *878 constitutional problems because a fundamental right may only be denied upon a showing of a compelling state interest, [FN186] and as previously discussed, the no-citation rule does not serve such a compelling interest. In summary, the rule violates the general right to court access because it may totally hinder a litigant's ability to vindicate his or her rights in court.
As the law now stands, unpublished opinions have no precedential value in the Eighth Circuit. The circuit's no-citation rule clearly curtails litigants' rights by preventing citation of unpublished opinions and expands the power of the court by allowing it to ignore prior case law. The inevitable effect of the no-citation rule is a sharp departure from the principles that the American legal system should embrace: equality, fairness, stability, and certainty.
In Anastasoff v. United States, Judge Richard Arnold properly struck down the Eighth Circuit no-citation rule as an unconstitutional expansion of Article III power. However, upon rehearing en banc, the Eighth Circuit Court of Appeals vacated the judgement as moot, and left the constitutionality of the no-citation rule “an open question” in the circuit. In light of this result, the court should directly address the constitutionality of the no-citation rule and ultimately conclude that the rule is unconstitutional. As this note has demonstrated, the no-citation rule violates stare decisis, abridges free speech and denies litigants meaningful access to the courts. Our forefathers never intended the courts to have such unbridled discretion, nor the people to have such limited rights, as prescribed by the no-citation rule.
[FN1]. 8th Cir. R. 28(A)(i).
[FN2]. William L. Reynolds & William M. Richman, The Non-Precedential Precedent-Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167, 1169 (1978) [hereinafter Reynolds & Richman, Non-Precedential Precedent].
[FN6]. Id. at 902 .
[FN8]. According to Tony Mauro, the decision was “the talk of the appellate world within hours.” Tony Mauro, Piling On, The Recorder, Sept. 6, 2000, at 2.
[FN10]. See Mauro, supra note 8, at 2.
[FN11]. Anastasoff v. United States, 235 F.3d 1055, 1056 (8th Cir. 2000) (Anastasoff II).
[FN13]. Brief for Appellant at 3, Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) (No. 99-3917). Anastasoff was a resident of St. Louis County, Missouri, and a calendar-year taxpayer. Id.
[FN14]. Brief for Appellee at 14, Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) (No. 99-3917).
[FN16]. Brief for Appellant at 2, Anastasoff I (No. 99-3917). Anastasoff's 1992 Form 1040 reflects her total federal income tax liability of $3089, her total withheld federal income tax of $9525, and her overpayment of $6436. Id. at 3.
[FN17]. Form 1040 comprised both her tax return and her refund claim. See 26 C.F.R. § 301.6402-3(a)(5) (1993) (stating that in the case of an overpayment of income taxes, a claim for credit or refund of such overpayment shall be made on the appropriate income tax return).
[FN18]. Brief for Appellant at 3, Anastasoff I (No. 99-3917). She mailed the forms via certified mail from the Town and Country Branch Office of the United States Postal Service in Chesterfield, Missouri. Id.
[FN19]. Id. at 4. Anastasoff was late in filing her return primarily because she had been seriously ill, suffering from cancer and clinical depression during the time the return was due. Id. at 3.
[FN20]. Id. at 4.
[FN24]. Brief for Appellant at 13, Anastasoff I (No. 99-3917).
[FN25]. The Mailbox Rule states:
If any return, claim, statement, or other document required to be filed ... within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such return, claim, statement or other document is required to be filed ... the date of the United States postmark stamped on the cover in which such return, claim, statement or other document is mailed shall be deemed to be the date of delivery.
I.R.C. § 7502(a)(1) (1983).
[FN26]. Brief for Appellant at 14, Anastasoff I (No. 99-3917). Anastasoff contended that the plain language of section 7502 made it independently applicable to section 6511(b), irrespective of its applicability to section 6511(a):
Section 7502 provides that a claim is deemed filed when mailed if the claim is filed within a prescribed period under the authority of any provision of the internal revenue laws and the claim is mailed within the period. The [section] 6511(b) limitation is unquestionably a period prescribed under the internal revenue laws. Plaintiff's refund claim was timely mailed on April 13, 1996, and should be treated as timely filed on that date for purposes of [section] 6511(b).
Id. at 13. Anastasoff further contended that: Congress enacted [section] 7502 to eliminate the fortuitous circumstances of postal delivery, which vary by place and season, from the determination of whether a document was timely filed. The Mailbox Rule is a sound policy: it avoids using precious judicial resources to determine the factual question of when a document was actually received and permits similarly situated taxpayers to be treated the same. Indeed, millions of Americans rely-perhaps unwittingly-on the Mailbox Rule every year when they mail their tax returns on April 15. As a remedial provision, the Mailbox Rule is to be liberally construed.
Id. at 12.
[FN27]. Brief for Appellee at 8, Anastasoff I (No. 99-3917).
[FN29]. Brief for Appellant at 4, Anastasoff I (No. 99-3917). Anastasoff first pursued her claim, believing it to be timely, by contacting her United States Congressman, Jim Talent. Talent, in turn, asked the IRS to determine the date it received her 1992 Form 1040. The IRS responded that it “should have arrived at the Service Center on the following third or fourth day.” Id.
[FN34]. Brief for Appellant at 4, Anastasoff I (No. 99-3917).
[FN35]. No. 99-2375MN (8th Cir. Mar. 20, 1992). In discussing the Christie decision, the Anastasoff court stated:
In Christie, as here, we considered a refund claim mailed just prior to § 6511(b)'s three-year bar and received just after. Like Ms. Anastasoff, the Christie taxpayers argued that § 7502 should operate regardless of the claim's timeliness under § 6511(a) to save their claim under § 6511(b). We held that even if § 7502 could apply to a timely claim, it would not help in this situation: If § 7502 were applied to the claim, it would be deemed received before the return. But § 6511(a) provides that a claim must be submitted within two years of overpayment if no return has yet been filed-not three years. In other words, to save the claim under § 6511(b) only makes it untimely under § 6511(a).
[FN36]. Brief for Appellant at 17, Anastasoff I (No. 99-3917).
[FN37]. 8th Cir. R. 28A(i).
[FN38]. Judge Arnold won the prestigious Devitt Award for Distinguished Service to Justice, was once on President Bill Clinton's short list for a United States Supreme Court appointment, and is well-known throughout the bar. See Mauro, supra note 8, at 2. In 1999, Judge Arnold wrote an article expressing his views about no-citation rules and foreshadowing the decision reached in this case. See Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219 (1999).
[FN39]. Anastasoff I, 223 F.3d at 900. As mentioned earlier, the striking down of Rule 28A(i) received mixed reviews from the legal community. Ninth Circuit Judge Alex Kozinski commented, “As a matter of constitutional doctrine it's hogwash. It is total nonsense, and I expect it to have a very short life.” France, supra note 9, at 2227. Professor Michael Paulsen of the University of Minnesota School of Law commented, “The idea that the Constitution requires that cases be considered binding on the judiciary is really so extreme as to border on the frivolous.” Id. at 2228. Boalt Hall School of Law Professor Stephen Barnett said, “It's a bombshell for the seven circuits that do ban the citation of unpublished opinions ... it's now up to the Ninth Circuit to take a look at its own rules.” See Kevin Livingston, Eighth Circuit Drops a Bombshell, Decision Favoring Unpublished Opinions is all the Talk at Sun Valley, The Recorder, Aug. 24, 2000, at 1. Arthur Bryant, executive director of Trial Lawyers for Public Justice, commented, “This is a brilliant and very important opinion that captures the crux of what is wrong with unpublished opinions.” See Mauro, supra note 8, at 2.
[FN41]. Anastasoff II, 235 F.3d at 1055. The panel thought that decision was for the court en banc, which, unlike the panel, has the authority to overrule previous decisions. Id.
[FN45]. The United States paid the claim with interest, in the total sum of $11,437.32. Id.
[FN46]. The announcement came in the form of a document styled Action on Decision, AOD 2000-09, 2000 WL 1711554 (Nov. 13, 2000). Anastasoff II, 235 F.3d at 1055.
[FN47]. Anastasoff II, 235 F.3d at 1055.
[FN48]. Id. at 1056.
[FN51]. For a more extensive history, see Donna Stienstra, Federal Judicial Center, Unpublished Dispositions: Problems of Access and Use in the Courts of Appeals 5-14 (1985); Mark D. Hinderks & Steve A. Leben, Restoring the Common in the Law: A Proposal for the Elimination of Rules Prohibiting the Citation of Unpublished Decisions in Kansas and the Tenth Circuit, 31 Washburn L.J. 155, 157-59 (1992); Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Reform 119, 121-26 (1995); William L. Reynolds & William M. Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573, 577-79 (1981) [hereinafter Reynolds & Richman, Price of Reform]; William L. Reynolds & William M. Richman, Limited Publication in the Fourth and Sixth Circuits, 1979 Duke L.J. 807, 808-09 [hereinafter Reynolds & Richman, Limited Publication]; Donald R. Songer, Criteria for Publication of Opinions in the U.S. Courts of Appeals: Formal Rules Versus Empirical Reality, 73 Judicature 307, 307-08 (1990).
[FN52]. 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, 771 (1995).
[FN53]. Id. (citing John P. Dawson, The Oracles of the Law 75-76 (1968) (indicating that lawyers most often relied on their own case notes, which were passed around legal circles, copied, and sometimes published)).
[FN54]. Id. (citing Daniel J. Boorstin, The Mysterious Science of the Law 3 (1941) (stating that “in the first century of American jurisprudence, the commentaries were not merely an approach to the study of law, but for most lawyers they constituted all there was of the law”)).
[FN55]. Id. (citing Sir Edward Coke, The First Part of the Institutes of the Laws of England (1853)).
[FN56]. Id. (citing Sir William Blackstone, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia (1803)).
[FN57]. Reynolds & Richman, Price of Reform, supra note 51, at 573 n.8 (stating that “[t]he first English reports were the Year Books, which began as a kind of early newspaper in the reign of Edward I”).
[FN58]. Dragich, supra note 52, at 772 (citing Frederick C. Hicks, Materials and Methods of Legal Research 130-31 (3d ed. 1942) (listing years covered by each state's and federal court's official reporter system)).
[FN59]. Id. (citing Fredrick G. Kempin, Jr., Precedent and Stare Decisis: The Critical Years, 1800-1850, 3 Am. J. Legal Hist. 28, 34 (1959) (recognizing that no official reports existed in American colonies, but some jurisdictions published lawyers' notes)).
[FN60]. Id. (citing Kempin, supra note 59, at 35 (stating that early reporters of decisions were interested almost entirely in the arguments of counsel, not the opinion of the court)).
[FN62]. Id.; see also Kirt Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Cal. L. Rev. 543, 545 (1997), stating that:
The author of an 1824 article complained: “[T]he multiplication of reports, emanating from the numerous collateral sources of jurisdiction, is becoming an evil alarming and impossible to be born ... such has been this increase, that very few of the profession can afford to purchase, and none can read all the books which it is thought desirable, if not necessary to possess. By their number and variety they tend to weaken the authority of each other, and to perplex the judgment.”
Id. at 549 (quoting E. Bliss & E. White, The Common Law, 10 N. Am. Rev. 411, 433 (1824)); Robert C. Berring, Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information, 69 Wash. L. Rev. 9, 15-22 (1994) (recounting the history of the case reporter). Another commentator described the number of reporters available in the early nineteenth century as follows: The law library of the future staggers the imagination as one thinks of multitudes of shelves which will stretch away into the dim distance, rank upon rank, and tier upon tier, all loaded with their many volumes of precious precedents. One shrinks from the contemplation of the intellectual giants who will be competent to keep track of the authorities and make briefs in those days; they, as well as the judges who pass upon the briefs, must be supermen indeed.
Shuldberg, supra, at 545 (quoting John B. Winslow, The Courts and the Papermills, 10 Ill. L. Rev. 157, 158 (1915)).
[FN63]. Dragich, supra note 52, at 772 (citing Berring, supra note 62, at 15-21 (remarking that publication of all available cases and expansion of the legal system dramatically increased the raw data available to legal researchers)).
[FN64]. Id. (citing Berring, supra note 62, at 28).
[FN65]. Id. (citing Berring, supra note 62, at 19-21 (observing that the large volume of cases began to overwhelm lawyers' capacity to remember)); see also Karl Llewellyn, The Case Law System in America 7 (1989).
[FN66]. Boyce F. Martin, In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 183 (1999).
[FN67]. See Shuldberg, supra note 62, at 546 (citing Songer, supra note 51, at 308 (noting that “[i]t is not known how many decisions of the court of appeals were not published before 1964, but apparently the number was relatively small”)).
[FN68]. See id. at 546 n.13 (stating that “[m]emorandum [d]ecisions were included at the end of the Federal Reporter volumes”); see, e.g., Livesay Indus. v. Rinehart, 270 F.2d 953 (5th Cir. 1959) (holding simply that the judgment of the lower court was affirmed).
[FN69]. Shuldberg, supra note 62, at 546 (citing Charles W. Joiner, Limiting Publication of Judicial Opinions, 56 Judicature 195, 195-96 (1972)).
[FN71]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1169.
[FN72]. Kerri C. Klover, Comment, Order Opinions-The Public's Perception of Injustice, 21 Wm. Mitchell L. Rev. 1225, 1238 (1996).
[FN73]. U.S. Admin. Office of the Courts, Judicial Conference Reports 1962-64, at 11 (1964); see also Klover, supra note 72, at 1236 (citing Stienstra, supra note 51, at 591-98 (providing a detailed history of the origins of nonpublication rules)).
[FN74]. Klover, supra note 72, at 1238.
[FN76]. The Federal Judicial Center was established in 1967 by the Federal Judicial Center Act, Pub. L. No. 90-219, 81 Stat. 664. The Act specifies four functions for the Center: (1) to research and study the operation of the federal court system; (2) to develop improved techniques of judicial administration; (3) to stimulate, create, and conduct programs of continuing education and training for all personnel of the federal judiciary; and (4) to provide staff, research, and planning assistance to the Judicial Conference of the United States. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1170. A thorough exposition of the Center's origin and present functions may be found in Tom C. Clark, The Federal Judicial Center, 1974 Ariz. St. L.J. 537.
[FN77]. Klover, supra note 72, at 1238 (citing Stienstra, supra note 51, at 501-02 (“The Advisory Council, organized by the Judicial Center in 1971, published a report in 1973 proposing standards for publication and recommending that nonpublished opinions not be cited as precedent since access to these opinions was unequal.”)).
[FN78]. The following modifications were to be implemented: (a) opinions would not be published unless ordered by a majority of the panel rendering the decision; (b) non-published opinions would not be cited, either in briefs or in court opinions; and (c) when an opinion was not published the public record would be completed by publishing the judgment of the court. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1170 (citing Bd. of the Fed. Judicial Ctr., Recommendation and Report to the April 1972 Session of the Judicial Conference of the United States on the Publication of Courts of Appeals Opinions (1972)).
[FN79]. 1972 Judicial Conference of the United States Rep. 33. Originally, the plans were to be submitted by January 1, 1973. The deadline was subsequently extended to December 31, 1973. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1170.
[FN80]. See generally Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1170. Earlier on, courts realized that because of the availability of unpublished opinions, a no-citation plan would have to accompany the selective publication plans in order to give effect to those plans. Id.
[FN81]. The Advisory Council for Appellate Justice was a distinguished group of lawyers, law professors, and judges, brought together by the Judicial Center. The Council produced a report that considered standards for publication, procedures for deciding which opinions should be published, and the desirability of allowing citation of unpublished opinions. The report was published in pamphlet form by the Federal Judicial Center under the title Standards for Publication of Judicial Opinions. Id.
[FN82]. For a copy of the model rule, see id.
[FN85]. Klover, supra note 72, at 1239 (citing David M. Gunn, “Unpublished Opinions Shall Not Be Cited As Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 St. Mary's L.J. 115, 124 (1992) (“The general rule in federal courts of appeals is that unpublished opinions have no precedential effect. And every federal appellate court except the Supreme Court designates some of its opinions as unpublished.”)).
[FN86]. The Conference Report noted:
While the plans of each circuit generally follow the basic recommendations of the report of the Federal Judicial Center to the April 1972 meeting of the Judicial Conference, each circuit, to a limited extent, is experimenting with respect to some phases of its plan. There are in effect 11 legal laboratories accumulating experiences and amending their publication plans on the basis of the experience. Because the possible rewards of such experimentation are so rich, the Conference agreed that it should not be discontinued until there is considerabley more experience under the diverse circuit plans.
Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1173 (quoting  Judicial Conference of the United States Rep. 12).
[FN89]. See D.C. Cir. R. 28(c), 36; 1st Cir. R. 36.2; 2d Cir. R. 0.23; 3d Cir. I.O.P. 5.3, 5.4; 4th Cir. R. 36(a), (b), (c); 5th Cir. R. 47.5, 47.6; 6th Cir. R. 24; 7th Cir. R. 53; 8th Cir. R. 28A(k); 8th Cir. App. I; 9th Cir. R. 36; 10th Cir. R. 36.1, 36.2, 36.3; 11th Cir. R. 36-1, 36-2, 36-3; Fed. Cir. R. 47.6.
[FN90]. The Fifth Circuit's publication history provides a good example:
In 1969, the Fifth Circuit published opinions in more than 80% of its decisions. In the 1978-1979 statistical year, the Fifth Circuit published opinions in only 58.6% of its decisions. In 1987, that percentage dropped to 46.7%. Thus, the Fifth Circuit's publication rate declined by approximately 41% from 1969 to 1987.
Dragich, supra note 52, at 761-62 n.14 (citations omitted).
[FN91]. Hinderks & Leben, supra note 51, at 158 n.8 (“No specific data are available, but Professor Songer has concluded, from all available sources, that there were very few unpublished [opinions] before 1964 and, in most circuits, until after publication plans were adopted in the early 1970s.” (citing Songer, supra note 51, at 308)).
[FN92]. Id. at 158.
[FN93]. See generally Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 188-89 (1999) (citing The Admin. Office of the U.S. Courts, 1996 Judicial Business of the United States Courts 47, Table S-3). “The Administrative Office provides current information on unpublished opinions in the courts of appeals. According to the Administrative Office, 76% of Opinions or Orders Filed in Cases Terminated on the Merits After Oral Hearing or Submission on Briefs were unpublished in 1995-1996.” Id. at 189. The Fourth Circuit had the highest rate of non-publication with 90.3%. Id.
[FN94]. In 1970, the courts of appeals disposed of 10,969 cases. Within ten years, this number had almost doubled to 20,877. After another ten years, the number had almost doubled again, to 38,520. In 1993, 47,790 appeals were disposed of, and in 1997 the number was 51,194. Arnold, supra note 38, at 221. From 1970 to 1993, filings increased by 330% while judgeships increased by only 72%. See Dragich, supra note 52, at 759 n.7.
[FN95]. The federal system has adopted a number of strategies to deal with this volume, including more staff, a smaller proportion of cases argued orally, less time allotted to those cases that are argued, and decisions by one-line order. Arnold, supra note 38, at 221.
[FN96]. See Martin, supra note 93, at 178-79 (“Judge Merritt noted that ‘[t]he accountability problem due to nonpublication is overstated.” ’ (quoting Hon. Gilbert S. Merritt, The Decision Making Process in Federal Courts of Appeals, 51 Ohio St. L.J. 1385, 1393 (1990))); Hon. Philip Nichols, Jr., Selective Publication of Opinions: One Judge's View, 35 Am. U.L. Rev. 909, 921 (1986) (stating that “[w]hile a considerable amount of muttering about selective publication still occurs, it appears that judges like it and feel at home with it ....”). But see Nat'l Classification Comm'n v. United States, 765 F.2d 164, 173 n.2 (D.C. Cir. 1985) (noting arguments against the use of unpublished opinions).
[FN97]. Martin, supra note 93, at 178 n.8 (citing Paul P. Carrington et al., Justice on Appeal 35, 39-41 (1976) (rejecting nonpublication rules and recommending the use of decisions instead); Dragich, supra note 52, at 802 (“The courts of appeals' admittedly legitimate concerns with increasing caseloads do not warrant practices that threaten the development of a coherent body of law and fundamentally alter our appellate traditions.”); William L. Reynolds & William M. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273, 284 (1996) ( “The costs of non-publication are not limited to reduced predictability, accountability, responsibility, and reviewability. It should come as no surprise that unpublished opinions are also dreadful in quality.”); Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1205 (“The case against the limited publication/no-citation rules is a strong one. The premises upon which the rules are based are subject to serious question, and powerful arguments can be advanced against the entire concept.”); Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 940, 946 (1989) (“I argue [that] the selective publication plans, at least in their present form, cannot be supported as a fair or just way to manage the workload of the courts.”). But see Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Reform 119, 120 (1995) (“[A]lthough there are several weaknesses in the administration of rules restricting citation and publication of judicial opinions, the rules should not be eliminated.”); Reynolds & Richman, Limited Publication, supra note 51, at 809 (“Full exposure and consideration of the arguments reveal that neither the case for nor the case against limited publication is conclusive.”).
[FN98]. Charles E. Carpenter, Jr., The No-Citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy?, 50 S.C. L. Rev. 235, 243 (1998). According to Carpenter:
The rule is a response of the current cadre of appellate judges who are valiantly trying to handle the volume of their dockets. These judges have responded to the volume crises in two ways. One response is an enormous expansion of judicial resources by adding legions of staff attorneys, law clerks, visiting judges, and other para-judicial persons to augment the capacity of the court. The second response is to truncate the procedures to speed cases through the judicial process.
[FN99]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1182-83; see also Shuldberg, supra note 62, at 548; Martin, supra note 93, at 191 (stating that limited publication “separates the diamonds from the dross-and, although many on the other side of the bench would be unwilling to admit it, there is a lot of dross. I am repeating myself, but not all cases are of equal merit.”).
[FN100]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1183.
[FN105]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1183 .
[FN106]. See Martin, supra note 93, at 181, stating:
A large proportion of the opinions that have been coming out of American courts add essentially nothing to the corpus of the law. They are of interest and significance to the parties only. Yet they fill large quantities of pages in the reports. Lest the thirteen federal circuits become a Tower of Babel, we need a way to sift opinions for publication. Unpublished opinions act as a pressure valve in the system, a way to pan for judicial gold while throwing the less influential opinions back into the stream.
[FN107]. Id. at 193 (“[U]npublished opinions are unpublished in name only. What distinguishes them from published opinions are citation limits. Without such limits there is virtually no distinction between published and unpublished.”).
[FN108]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1205; Shuldberg, supra note 62, at 550.
[FN109]. Shuldberg, supra note 62, at 550.
[FN112]. Id.; Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1187.
[FN113]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1187.
[FN114]. See, e.g., Martin, supra note 93, at 180. Martin sets forth seven criticisms of the unpublished opinion: 1) loss of precedent, i.e., unpublished opinions are, in fact, precedent but cannot be used as such; 2) sloppy decisions, i.e., judges are careless when they know they are writing an unpublished opinion; 3) lack of uniformity, i.e., panels cannot follow other panels when they are unaware of the other panels' unpublished opinions; 4) difficulty of higher court review, i.e., the Supreme Court is far less likely to review an unpublished opinion than it is to review a published opinion; 5) unfairness to litigants, i.e., litigants deserve published opinions; 6) less judicial accountability, i.e., the unpublished opinion, particularly the per curiam opinion, allows the judge to hide from the public glare; 7) less predictability, i.e., a published opinion provides a roadmap of the law and a sense of the direction in which the law is developing. See also Carpenter, supra note 98, at 247-48 (providing twenty-three criticisms of limited publication).
[FN115]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1190 (“K. Llewellyn's Afterward to the Bramble Bush is the classic exposition of the view that a precedent stands only for the proposition that subsequent cases say it stands for.”); see also Pamela Foa, A Snake in the Path of the Law: The Seventh Circuit's Non-Publication Rule, 39 U. Pitt. L. Rev. 309, 332-35 (1977) (giving several examples of unpublished opinions in the Seventh Circuit that flesh out principles set forth by published decisions). A strong contrary argument to the premise that dispute-settling opinions in fact have no value is that dispute-settling decisions have the most value. Because courts were created to settle disputes, dispute-settling cases represent the main body of law from which lawmaking is a byproduct. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1190.
[FN116]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1190.
[FN120]. See id. Reynolds and Richman note:
A rule which authorizes any court to censor the future citation of its own opinions or orders rests on a false premise. Such a rule assumes that an author is a reliable judge of the quality and importance of his own work product.
Id.; see also Shuldberg, supra note 62, at 551-52. According to Shuldberg: [M]any unpublished opinions do contain legal analyses that are important to future litigants and the public at large .... A survey of court behavior readily refutes the assumption that unpublished opinions are without value to future litigants. One illustration of this fact is that unpublished opinions are sometimes accompanied by a dissent. If two judges, both ruling from the same trial court record, disagree about the correct application of the law, it would seem quite doubtful that the opinion was such a mechanical application of law that it is of no value to future litigants.
[FN121]. Shuldberg, supra note 62, at 552 .
[FN122]. Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1200. Reynolds and Richman argue:
Common-law courts have an obligation to avoid inconsistency by deciding like cases in a like manner. This obligation is imposed to limit judicial discretion and ensure full consideration of all relevant arguments. Thus, a court faced with cases that appear to fall within the same controlling principle must treat those cases similarly or explain in reasoned fashion why it has not done so ... A judge who decides early in the process that a decision will not be published might not expend sufficient energy on the opinion to track down all the like cases. A court might also use the cloak of non-publication to avoid the tasks of reconciling arguably inconsistent decisions. That reconciliation would require the court to elaborate a rule that would deprive it of the freedom to decide on the basis of intuitive justice rather than articulated doctrine.
[FN123]. See Shuldberg, supra note 62, at 552-53. According to Shuldberg:
Judge Philip Nichols, Jr. of the Federal Circuit candidly admitted that, if dissenting, he would never insist on publication. His rationale: better to have the opinion banished from existence than be bound by what he considered bad precedent in the future. Judge Nichols also notes that in circuits which require publication of opinions accompanied by a dissent, an even more disingenuous practice likely occurs. In these circuits, he believes, “tying up the question of dissenting with publication may work adversely on the dissenter, constraining him not to dissent ....” Apparently this practice is more than mere speculation. A 1991 article attributed one scholar as saying that law clerks had told her “that judges sometimes would agree not to dissent if an opinion remained unpublished.
Id.; see also Carpenter, supra note 98, at 255-56 (“[J]udges may not be able to aptly predestine which opinions will be the most useful precedent. Using an uncitable, unpublished opinion to dodge sensitive issues or to delay confronting a conflict within the court is possible.”).
[FN124]. See Carpenter, supra note 98, at 256 (“Unpublished opinions ... effectively remove the check on appellate court power ... The Court rarely expends its limited resources correcting cases which, in theory, will affect only the parties at bar.”).
[FN125]. Id. (“[U]ncitable, unpublished opinions may keep questionable decisions out of the glare of academic and professional review. This avoidance, in turn, removes one of the major checks on the exercise of judicial power; namely, critical review by commentators, practitioners, the public, and higher courts.”).
[FN126]. See Reynolds & Richman, Non-Precedential Precedent, supra note 2, at 1204.
[FN127]. Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000) (Anastasoff I).
[FN131]. Id. at 900 (citing Morton J. Horwitz, The Transformation of American Law: 1780-1860, at 8-9 (1977); J.H. Baker, An Introduction to English Legal History 227 (1990); Sir William Holdsworth, Case Law, 50 L.Q.R. 180 (1934)).
[FN133]. Id. (citing Harold J. Berman & Charles H. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 Emory L.J. 437, 450 (1996)).
[FN134]. Id. at 901.
[FN136]. Id. (citing 1 William Blackstone, Commentaries *69; 4 E. Coke, Institutes of the Laws of England 138 (1642); Sir Mathew Hale, The History of the Common Law of England 33-45 (Univ. of Chicago ed. 1971)).
[FN139]. Today, the theory has been abandoned, and it is generally recognized that judges do make law. Rupert Cross, Precedent in English Law 26 (3d. ed. 1977).
[FN142]. Id. at 900; see also United States v. IBM Corp., 517 U.S. 843, 856 (1996) (quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991)).
[FN144]. The general orthodox interpretation of stare decisis is stare reationibus decidendis, which means “keep to the rationes decidendi of past cases.” Cross, supra note 139, at 105.
[FN146]. Cross, supra note 139, at 33-35 (stating that the obligation of the common law judge entails not only a duty to follow cases which bind him but also the duty of considering rules and principles mentioned in dicta or constituting the ratio decidendi of persuasive precedents).
[FN147]. Supreme Lodge Knights of Pythias v. Smyth, 245 U.S. 594 (1918). Arthur Goodhart, Determining the Ratio Decidendi of a Case, in Jurisprudence in Action 219 (1953). To determine whether a case is precedent:
We must first state the material facts in the precedent case and then attempt to find those which are material in the second one. If these are identical, then the first case is a binding precedent for the second, and the court must reach the same conclusion as it did in the first one. If the first case lacks any material fact or contains additional ones not found in the second, then it is not a direct precedent.
[FN148]. See John Salmond, Jurisprudence 201 (7th ed. 1924). A precedent is a judicial decision that contains a principle. The underlying principle that forms its authoritative element is called the ratio decidendi. The concrete decision is binding between the parties in the case, but only the ratio decidendi has force regarding the world at large. Id.; see also Cross, supra note 139, at 38-40.
[FN149]. Aleksander Reczenik Lund, The Binding Force of Precedent, in Interpreting Precedents 472 (1997). A formal binding precedent must be followed in later similar cases by courts below the precedent-setting court. A judgment not respecting a precedent's binding effect is not lawful and will be reversed on appeal. A precedent not formally binding but having force is one that courts below the precedent-setting court in later similar cases should also respect. The only difference between the degrees of authoritativeness of the two types of precedents is that the failure to follow precedent merely having force is subject to criticism and may be subject to reversal, whereas the failure to follow formally binding precedent is not lawful and is clearly subject to reversal on appeal. The United States Supreme Court and other federal courts do not regard themselves as absolutely bound by their past decisions. See generally id.
The degree of force of a precedent tends to vary in many different areas of the law. In certain fields that give rise to a high degree of reliance on settled precedent, a fairly strict adherence to precedent is observed. For instance, the binding nature of precedent is particularly compelling in cases involving property and contractual rights. Robert S. Summers, Precedent in the United States, in Interpreting Precedents 372-78 (1997). See, e.g., In re Eckart, 348 N.E.2d 905 (N.Y. 1976).
[FN150]. 8th Cir. R. 28(A)(i).
[FN152]. See Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 461 U.S. 375 (1983) (stating that the rule is founded largely on considerations of expediency and sound principles of public policy and is designed to preserve the harmony and stability of the law); see also Summers, supra note 149, at 378; Zennon Bankowski, Rationales for Precedent, in Interpreting Precedents 490 (1997); Cross, supra note 139, at 109.
[FN153]. Cross, supra note 139, at 225.
[FN154]. See Cullings v. Goetz, 176 N.E. 398 (N.Y. 1931).
[FN155]. See Cross, supra note 139, at 41.
[FN156]. Geoffrey Marshall, What is a Binding Precedent, in Interpreting Precedents 506 (1997) (“‘For precedential purposes,’ wrote Jerome Frank, ‘a case means only what a judge in a later case says it means.” ’). According to Marshall:
Whilst it would be absurd to define the ratio of the case as being the ruling of a future court, it may be plausible to say that what the ratio of a particular case turns out to be can sometimes be settled only after a number of similar cases have received judicial consideration. If a judge has this amount of freedom to determine which of his observations is ratio decedendi and which obiter dictum, is there not a grave danger he will exercise undue influence on the future development of the law? The answer to the question raised is that there are several considerations which may be said to redress the balance in favor of the judge who comes afterwards. No doubt the ratio decidendi of a previous case has to be gathered from the language of the judge who decided the case, but it is trite learning that the interpreter has namely as much to say as the speaker regarding the meaning of the words concerned.
Id. at 514 (emphasis added); see also Cross, supra note 139, at 41.
[FN157]. See, e.g., Sandell v. Des Moines City Ry. Co., 168 N.W. 226 (Iowa 1918) (stating that the doctrine of stare decisis does not ordinarily apply to decisions involving only questions of fact).
[FN158]. Cross, supra note 139, at 243-44 (“[I]t is impossible to provide a test for distinguishing between law and fact ... the question whether a case will be treated as precedential depends on the way in which future courts treat that case.”).
[FN159]. Id. at 48, noting:
A minor complication in discussions concerning the ratio decidendi is due to the fact that in some cases no reasons are given for the decision. The report merely contains a statement of the facts, with or without an account of the arguments of counsel, and concludes with some such remark as “judgment for plaintiff.” It would be a mistake to assume that such decisions necessarily lack a ratio decidendi which enables them to be cited as precedent, for a proposition of law on which they must have been based may be inferred with more or less confidence from the facts coupled with the conclusion.
See also Goodhart, supra note 147, at 194 (stating that the reason the judge gives for the decision is never the binding part of the precedent).
[FN160]. Goodhart, supra note 147, at 198 (stating that it is not the rule of law set forth by the court that necessarily constitutes the principle of the case).
[FN162]. Cross, supra note 139, at 77.
[FN164]. Id. at 77 n.1
[FN167]. Cross, supra note 139, at 77 .
[FN170]. Helvering v. Hallock, 309 U.S. 106 (1940); People v. Bing, 558 N.E.2d 1014 (N.Y. 1990) (“Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.”).
[FN171]. Summers, supra note 149, at 390; see also Danowitz v. Danek, 366 N.E.2d 253 (N.Y. 1977); Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902) (providing various methods for distinguishing precedent).
[FN172]. Summers, supra note 149, at 396. A previous case can be overruled for various reasons. It can be overruled when technological innovations make the precedent obsolete, see, e.g., McPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916); or when the change of precedent is necessary to bring the common law into line with growing social or moral enlightenment, see, e.g., Woods v. Lancet, 102 N.E.2d 691 (N.Y. 1951); or when a precedent was erroneous from the beginning, see, e.g., People v. Nixon, 161 N.E. 463 (N.Y. 1928); see also Cross, supra note 139, at 118 (“[The doctrine of precedent] gives the legal system the rigidity which it must have if it is to possess a definite body of principles, and the flexibility which it must have it if is to adapt itself to the needs of a changing society.”)); id. at 121-28 (explaining how a case can be expressly or impliedly overruled and that a case which has been overruled cannot be cited as authority for the proposition of law which constituted its ratio decidendi).
Changes in technology, commerce and industry, and evolving social attitudes to gender, generational and familial relationships, and a multitude of similar considerations, can give rise to a sense of legal rules and doctrines being out of step with needs and aspirations widely felt in society. Moreover, new appreciations of basic rights and of essential human liberties can give rise to a strong sense that, instead of representing the wisdom of the past, respect for precedents becomes a dead weight on social progress, the entrenchment of substantive unfairness or injustice in the guise of formal justice of treating like cases alike.
Bankowski, supra note 152, at 491. The fact that citizens have relied on precedent may alone provide sufficient justification for following precedent. See Dolphin Lane Ass'n v. Southampton, 333 N.E.2d 358 (N.Y. 1975); Bing v. Thunig, 143 N.E.2d 3, 9 (N.Y. 1957).
[FN174]. See Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970) (stating that courts should not lightly overrule past decisions); Dufel v. Green, 603 N.Y.S. 2d 624, 625 (1993) (“Although stare decisis does not require unyielding adherence to even recent precedent, the mere existence of strong arguments to support a different result is not sufficient, in and of itself, to compel the court to overturn judicial precedent.”); Lysle v. State, 193 S.W. 680 (Tex. Crim. App. 1917) (“It is a salutary rule, entitled to great weight, and ordinarily should be strictly adhered to by the court.”).
[FN176]. See Widmar v. Vincent, 454 U.S. 263, 276 (1981) (finding that the exclusion of religious speech from a public forum violates the First Amendment); Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972) (finding an ordinance prohibiting picketing in the vicinity of school invalid because the statute had not been content neutral); see also Lawrence Tribe, American Constitutional Law § 12-1 (2d ed. 1988) (“Any adverse government action aimed at communicative impact is presumptively at odds with the First Amendment.”).
[FN179]. See, e.g., Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (finding that preservation of fiscal resources, administrative convenience, and reduction of the work load of governmental bodies are not compelling state interests).
[FN181]. At various times, the courts sought the origin of the right in the Due Process Clause, Equal Protection Clause, Sixth Amendment, and the Privileges and Immunities Clause. See, e.g., Pennsylvania v. Finley, 481 U.S 551, 557 (1987); Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir. 1986); Stover v. Carlson, 413 F. Supp. 718, 722 (D. Conn. 1976).
The First Amendment's right to petition “has a pedigree independent of-and substantially more ancient than-the freedoms of speech and press.” In colonial times, it referred primarily to the power of the people to petition their legislatures. In fact, a significant amount of colonial legislation was initiated by citizen petition. In the modern era, the Supreme Court has held that the Petition Clause encompasses a right of access not only to the legislative branch but to the courts as well ... We conclude that the First Amendment right to petition, as currently interpreted, is the birthplace for the right of court access.
Id. (citations omitted).
[FN183]. See, e.g., Ex parte Hull, 312 U.S. 546 (1941) (striking down a prison regulation prohibiting prisoners from filing petitions for habeas corpus unless a state official found that they were properly drawn).
[FN184]. Bounds v. Smith, 430 U.S. 817, 828 (1977); see also Peterkin v. Jeffes, 855 F.2d 1021, 1037 (3d Cir. 1988) (“The touchstone is meaningful access to the courts.”).
[FN185]. See, e.g., May v. Sheahan, 226 F.3d 876, 883 (7th Cir. 2000) (“Those seeking to vindicate their rights in court enjoy a constitutional right of access to the courts that prohibits state actors from impeding one's efforts to pursue legal claims.”); Barrett v. United States, 798 F.2d 565, 575 (2d Cir. 1986) (“Unconstitutional deprivation of a cause of action occurs when government officials thwart vindication of a claim by violating basic principles that enable civil claimants to assert their rights effectively.”).
54 Ark. L. Rev. 847
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