Another Step Closer to
Citing Unpublished Opinions
The federal judiciary has taken the next key step toward the
enactment of a rule that would allow lawyers to cite unpublished opinions in
all appeals courts. But a U.S. Judicial Conference advisory committee has
sidestepped, for now, the thornier question of what precedential value can be
placed by advocates on such opinions.
The issue has divided federal appellate courts, which
continue to churn out unpublished opinions as a time-saving measure, often in
routine cases and sometimes in cursory fashion. About 80 percent of all
appellate court opinions are categorized as unpublished -- a misnomer, since
legal databases publish most of them online. Under the E-Government Act of
2002, in two years all court opinions -- including unpublished ones -- will
have to be posted on the courts' own Web sites. The circuits have different
rules on the extent to which unpublished opinions may be cited.
The Advisory Committee on Appellate Rules last November
initially approved the concept of allowing citations. On May 15, the panel
signed off on specific wording that will be submitted for public comment for
the next six months. After that, it will go back to the advisory committee,
then to a standing committee of the Judicial Conference. Finally, if the full
Judicial Conference and the Supreme Court approve the rule, it will go to
Congress and take effect unless Congress acts to change or reject it. The
process could take two years or more.
"No prohibition or restriction may be imposed upon the
citation of judicial opinions, orders, judgments, or other written
dispositions that have been designated as 'unpublished,' 'not for
publication,' 'non-precedential,' 'not precedent' or the like," the
proposed rule states. Another section of the rule requires parties to include
copies of unpublished opinions they are citing, unless the opinions are
available on a "publicly accessible electronic database."
In commentary accompanying the proposed rule, the advisory
committee states, "It is difficult to justify a system that permits parties
to bring to a court's attention virtually every written or spoken word in
existence except those contained in the court's own unpublished
The committee's vote was 7-1 in favor of the proposed rule,
with the dissenting vote cast by Sanford Svetcov, a partner at Milberg Weiss
Bershad Hynes & Lerach in San Francisco. "I think we don't need more
junk law in opinions than we already have," says Svetcov. His vote also
reflected the views of Alex Kozinski, a judge on the 9th U.S. Circuit Court of
Appeals who opposes expanded use of unpublished opinions.
In testimony before a House Judiciary Committee hearing last
year, Kozinski described unpublished opinions as "simply a letter to the
parties telling them who won and who lost, and why." Issuing such
opinions instead of full-blown rulings requiring many drafts, Kozinski said,
"frees us up to spend the time that needs to be spent on published
opinions, the ones that actually shape the law."
Requiring all dispositions to be published opinions, he
said, would result in "chaos in the law."
Kozinski also communicated his concerns about changing the
rules on unpublished opinions to Solicitor General Theodore Olson last year.
Olson, a member of the advisory committee, abstained on the issue last week,
even though his predecessor, Seth Waxman, first proposed the rule change.
Waxman's proposal, and the increasing electronic
availability of unpublished opinions, helped start debate over the issue
several years ago. But it was an opinion in 2000 by 8th Circuit appeals Judge
Richard Arnold, Anastasoff v. United States, that pushed the debate
toward the pending rule change. Acting in a routine tax case, Arnold said it
was unconstitutional for courts to bar lawyers from citing unpublished
opinions. The case was later rendered moot, but Arnold's views transformed
In an interview, Arnold said the advisory committee's vote
was "a step in the right direction," and also an easy step to take
because of "the First Amendment implications and open government
Arnold, who assumed senior status in 2001, also said the new
rule would lead almost inevitably to giving unpublished opinions substantial
weight as precedents. "It would be hard for a court to say, 'You can
remind us what we did before, but we don't care. We're going to ignore
Asked if he was affirming the fears of opponents such as
Kozinski that the rule change would create a slippery slope toward the
widespread use of unpublished opinions, Arnold said, "Yes, and I hope the
slope is very steep and very slippery." He added, "I don't know
what judges are afraid of."