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JUDGES AND JUDICIARY  •  Sep. 30, 2004
You Can See, But Not Cite

        SAN FRANCISCO - The 9th U.S. Circuit Court of Appeals' Web site offered a new service Wednesday, allowing easy public access to every unpublished memorandum issued each day. Memos will be kept online for 30 days to allow anyone to have a look.
        Of course, the court's rules remain unchanged: look but don't touch. Memos cannot be cited in other cases unless you can show a direct conflict with a published decision of the court.
        For Emeryville attorney Ken Schmier, relentless pusher of publication, "Now it's clear that everybody, the court, the counsel and the litigants, can all know what these decisions are, they just can't discuss them in the courtroom. How crazy is that?"
        As Judge Alex Kozinski pointed out in January when opposing expanded citation, "it imposes colossal disadvantages on weak and poor litigants."
        After all, who but lawyers have the time to search every unpublished utterance of every court in the land?
        Schmier's siren song of citation for all still falls on deaf ears. To see the memos daily, check www.ca9.uscourts.gov.

        - Pamela MacLean

2004 Daily Journal Corporation. All rights reserved.