From Anastasoff to Hart to West's Federal Appendix: the ground shifts under no-citation rules.

• Author: Barnett, Stephen R.

1. INTRODUCTION: A FAST-PACED YEAR

   Last year's mini-symposium on unpublished opinions (1) seems to have unleashed a wave of further developments. The fast-breaking events include these:

   1. Judge Richard S. Arnold's opinion for the Eighth Circuit in Anastasoff v. United States, (2) holding--until vacated as moot--that the circuit's rule denying precedential effect to unpublished opinions exceeded the Article III judicial power, has been ringingly answered by Judge Alex Kozinski's opinion for the Ninth Circuit in Hart v. Massanari. (3)

   2. The American Bar Association's House of Delegates has declared that the practice of some federal circuits in "prohibiting citation to or reliance upon their unpublished opinions" is "contrary to the best interests of the public and the legal profession." (4) The ABA urges the federal appellate courts to "make their unpublished opinions available through print or electronic publications [and] publicly accessible media sites," as well as to "permit citation to relevant unpublished opinions." (5)

   3. In a startling action that drains the meaning from the term "unpublished" opinion, the West Group in September 2001 launched its Federal Appendix. (6) This is a new case-reporter series in West's National Reporter System that consists entirely of "unpublished" opinions from the federal circuit courts of appeals (except, currently, the Fifth and Eleventh Circuits). (7) By late April 2002, West had published twenty-seven volumes of the Federal Appendix, averaging some 400 cases per volume, and was expecting to report some 12,000 cases per year. (8) The cases in the Federal Appendix are supplied with headnotes, indexed to West's Key Number system, garnished with the other "editorial enhancements" of West's reporting system, and christened with their own citation form: "--Fed. Appx. --." Except for its citation restrictions, (9) the Federal Appendix looks, reads, and quacks like a book of "published" case reports. If nothing else, West's action is requiring that definitions of "unpublished" be radically revised. (10)

   4. The most significant move by the federal courts has come from the District of Columbia Circuit. Effective January 1, 2002, that court abandoned its no-citation rule and declared that all unpublished opinions issued on or after that date "may be cited as precedent." (11) Meanwhile, the Third Circuit has become the eleventh of the thirteen federal circuits to post its unpublished opinions online and make them available to legal publishers. (12)

   5. The action by the D.C. Circuit tips the balance in the federal courts against no-citation rules. Of the thirteen circuits, there remain only five--the First, (13) Second, (14) Seventh, (15) Ninth, (16) and Federal (17)--that ban citation of unpublished opinions (except, of course, for related-case uses such as res judicata). The other eight circuits discourage citation of unpublished opinions, typically calling it "disfavored," but grudgingly allow it. They do this generally under one of two formulas--(1) that the opinions may be cited as "precedent" or for "precedential value" (the Fourth, (18) Sixth, (19) and D.C. (20) Circuits), or (2) that they are "not precedent" but may be cited for their "persuasive" value (the Fifth, (21) Eighth, (22) Tenth, (23) and Eleventh (24) Circuits). The Third Circuit, a loner, uses no formula but allows citation. (25)

   The balance tips toward citability in numbers of cases as well. The citable unpublished cases from the eight territorial circuits that allow citation total some 15,000 per year, while the noncitable cases from the four territorial circuits that ban citation total about half that. (26) It should be noted, however, that the Fifth and Eleventh Circuits, which each put out more than 3,000 unpublished opinions per year, withhold those opinions from online distribution (or West's Federal Appendix), while schizophrenically allowing them to be cited. (27) It appears, nonetheless, that these opinions are not effectively suppressed and in fact are cited. (28)

   6. While this essay focuses on the federal courts, there is noteworthy movement in the state courts as well. In what would be a seismic shift, the Texas Supreme Court has tentatively decided to lift the "Do Not Publish" stamp now affixed to some eighty-five percent of the opinions of the Texas court of appeals and to "remove prospectively any prohibition against the citation of opinions as authority." (29) Meanwhile, California's court of appeal, which brands some ninety-four percent of its opinions "unpublished," (30) has begun posting all its unpublished opinions on the court's website. (31) Citation is still prohibited, but the technological (and psychological) infrastructure is in place for possible pressure to follow a Texas lead.

   Against the backdrop of these developments, I shall in this Essay first appraise the face-off between Judge Arnold and Judge Kozinski in Anastasoff and Hart, setting their disagreement about "precedent" against the spectrum of meanings which that word may convey. I will argue that Judge Kozinski's opinion in Hart, for all its scholarly brilliance, demonstrates, in part, something different from what he may have intended. I will then consider Judge Kozinski's arguments against no-citation rules, finding them inadequate, and will conclude by considering the degree of "precedential" force that unpublished opinions should be accorded in the federal courts.

2. ANASTASOFF, HART, AND THE SPECTRUM OF PRECEDENT

   1. Anastasoff and Hart

      Amid the continued controversy over unpublished opinions and the uses of precedent, the debate between Judge Arnold in Anastasoff and Judge Kozinski in Hart focuses, perhaps surprisingly, on one facet of this subject. These two intellectual heavyweights go to the mat over whether Article III requires that all decisions of the federal courts of appeals be regarded as "binding precedents." Judge Arnold finds from his examination of eighteenth-century sources that "[t]he Framers thought that, under the Constitution, judicial decisions would become binding precedents in subsequent cases." (32) He thus concludes--given the "law-of-the-circuit" rule, under which a panel's decision cannot be overruled by another panel, but only by the court en banc (33)--that his panel was required to follow an unpublished Eighth Circuit decision. (34) Judge Arnold further concludes that the Eighth Circuit's Rule 28A(i), stating that unpublished opinions "are not precedent," purports to "expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional." (35)

      In Hart, Judge Kozinski--who, like Judge Arnold, had previously written extra-judicially on this subject (36)--seized on the opportunity presented by a lawyer who cited an unpublished Ninth Circuit opinion and then defended his violation of the court's no-citation rule by arguing that the rule was unconstitutional under Anastasoff. Meeting Judge Arnold on his chosen ground of eighteenth-century history, Judge Kozinski offers a scholarly account that refutes Anastasoff's claim of a historically-based constitutional requirement of binding precedent. The modern concept of binding precedent required two conditions, reliable case reports and a settled hierarchy of courts, that were not in place until at least the mid-nineteenth century, Judge Kozinski points out. (37) When the Constitution was drafted, then, it was "emphatically not the case that all decisions of common law courts were treated as precedent binding on future courts unless distinguished or rejected." (38) Judge Kozinski's panel thus declines to follow Anastasoff and holds the Ninth Circuit's no-citation rule constitutional. (39)

      Fascinating as this historical duel is, the opinions by Judge Arnold and Judge Kozinski deal with only one variety of precedent. That word can mean many things; "binding" precedent is only one of those things, and arguably not the most important for the current debate. Although the categories overlap and the lines blur, one can identify at least five species of precedent that may be relevant to this discussion.

   2. The Spectrum of Precedent

      1. Binding precedent. "Binding" precedent is what the shouting is about in Anastasoff and Hart. It is the rule, as stated by Judge Kozinski, that a court's decision "must be followed by courts at the same level and lower within a pyramidal judicial hierarchy." (40) By virtue of the words "at the same level," this formulation incorporates in the concept of binding precedent the law-of-the-circuit rules, existing in all circuits, which mandate that only the en banc court can overrule a panel decision. (41) Accordingly, an unpublished opinion recognized under a particular circuit's rules as "precedent"--which can happen in the D.C. Circuit (42)--and possibly one recognized as having "precedential value"--which can happen in the Fourth and Sixth Circuits (43)--may become binding precedent for other panels in that circuit. (44)

      2. Overrulable precedent. "Overrulable" precedents are decisions the court ordinarily will follow under stare decisis, but may overrule if sufficient reasons present themselves. The category typically includes earlier decisions of the same court. Some kinds of precedents, even from the same court, can be overruled more readily than others. The Supreme Court's summary dispositions, for example, receive "less deference" from the Court than its decisions made "after briefing, argument, and a written opinion." (45) Under the law-of-the-circuit rule, on the other hand, overruling is restricted; one circuit panel cannot overrule another panel's decision.

      3. "Precedent," or "precedential value." In the third category are simply "precedents," or cases having "precedential value." These are omnibus terms whose meaning can run the gamut from binding precedent to mere citable precedent (discussed shortly). Of the eight circuits that allow citation of unpublished opinions, one--the D.C...