Overturning the last stone: the final step in returning precedential status to all opinions.

Author:Cleveland, David R.

    "When over 500 of the best judges, lawyers, and law professors in America get into a fight over a proposed rule, no stone will be left unturned, and no argument will be left unmade." (1) Yet in the adoption of the new Federal Rule of Appellate Procedure 32.1, permitting citation of unpublished decisions issued after January 1, 2007, the most significant stone remains unturned. (2) That stone bears the label "precedent." Despite the Rule's adoption, the most critical questions regarding precedent remain: Do American courts have the authority to render decisions not binding on future courts, and, even if they do, should they issue such decisions? These questions were expressly avoided by the Committee and the Supreme Court in approving the new federal rule, (3) as well as the first committee to propose a limited publication plan in 1973. (4) Nonetheless, they merit further consideration by everyone who practices before, sits on, or is concerned with our nation's courts. (5)


    In the mid-1970s, the members of the judiciary fundamentally changed the nature of precedent in the federal courts. They did so relatively quickly and quietly: first, by issuing decisions not designated for publication and not citeable, and then, by denying these decisions precedential status. The number of these unpublished decisions had risen to over eighty-four percent of all circuit decisions in 2006. (6) While Rule 32.1 restores citeability to these decisions, it does nothing to address the more critical issue of whether these decisions can be denied precedential weight, and even if so, whether they ought to be denied such value. (7)

    The history of this process reveals that removing the precedential status of some federal decisions was not, at least initially, an explicit part of the plan for limited publication or citation. While concern over the increasing volume of federal case decisions was expressed as early as 1915, a mere twenty-one years after the Federal Reporter began publishing cases from the Courts of Appeals, it was not until 1964 that the current publication/citation/precedent landscape began to take shape. (8) In 1964, the Federal Judicial Conference recommended that the Courts of Appeals should report only those decisions that would be of "general precedential value" in order to deal with "the ever increasing practical difficulty and economic cost of establishing and maintaining accessible private and public law library facilities." (9) Little action was taken on this suggestion until the 1973 Committee on the Use of Appellate Court Energies of the Federal Judicial Center's Advisory Council on Appellate Justice (10) issued a report, Standards for Publication of Judicial Opinions, recommending limited publication and citation that included a draft plan for the courts of appeals to adopt. (11) In that report, non-publication and non-citation seemed to go hand in hand because permitting citation would create a market for these decisions. With this model in hand, the courts began to adopt rules limiting publication and citation. (12)

    By 1974, each circuit had submitted plans to the Judicial Conference for how it would limit publication and citation. (13) Despite their lack of uniformity, or perhaps because of it, the federal Judicial Conference was pleased with the state of affairs, viewing each of the circuits as a legal laboratory that would accumulate experience and refine the rules accordingly. (14) However, the Conference's statements reveal that while it thought, "the possible rewards of such experimentation are so rich," the plan was not necessarily a permanent solution. (15)

    Neither the 1964 Conference nor the 1973 Committee was inclined to deny precedential status to these new unpublished opinions. (16) Publication plans would limit publication to those cases of greatest, broadest precedential value, but that did not inherently diminish the precedential value of other cases. (17) In fact, the Advisory Council expressly considered a provision assigning unpublished opinions no precedential value, but it purposely avoided making such a suggestion to avoid the "morass of jurisprudence" such a debate would entail. (18) Initially, most federal courts of appeals took a similar approach by adopting publication plans that did not mandate a lesser or different precedential status for unpublished decisions but merely avoided their precedential effect by making them nonciteable. (19) However, within a few years, the federal court rules made these unpublished cases non-precedential. (20)

    While this may seem a small and innocuous step to some, particularly those who have studied and practiced law solely in the period when unciteable and non-precedential unpublished opinions were the norm, a decision to remove precedential value from some decisions was a radical paradigm shift. For the first time in the history of Anglo-American common law, courts were free to render opinions that played no part in prescribing the law in similar future cases. Future factually similar cases would find no refuge, by precedent or reason, in these prior "unpublished" decisions. These unpublished cases were now neither evidence of the law nor the law itself. As Judge Richard Arnold explained:

    If we mark an opinion as unpublished, it is not precedent. We are free to disregard it without even saying so. Even more striking, if we decided a case directly on point yesterday, lawyers may not even remind us of this fact. The bar is gagged. We are perfectly free to depart from past opinions if they are unpublished, and whether to publish them is entirely our own choice. (21) That this fundamental shift in jurisprudence has caused significant debate is not surprising. What is surprising however, is that even though the debate has addressed the propriety of both non-citation and non-precedent, the rulemaking has focused on the procedural half of the matter (citation) and not the substantive half (precedent). With the adoption of Rule 32.1, lawyers are no longer "gagged," at least as to unpublished decisions rendered after January 1, 2007; however, the unpublished cases they cite are still of less than full precedential value. (22)

    The issue of citation was the subject of a lengthy debate and rulemaking process under the Rules Enabling Act. (23) The result was Rule 32.1, which permits citation to unpublished opinions rendered after January 1, 2007. (24) This Rule followed several years of contentious debate. (25) The "unpublished-opinions issue has been the subject of prolonged and, at times, even bitter controversy." (26) As noted at the beginning of this paper, Professor Schiltz commented in describing the breadth of this debate that "[w]hen over 500 of the best judges, lawyers, and law professors in America get into a fight over a proposed rule, no stone will be left unturned, and no argument will be left unmade." (27) Unfortunately, while the citation issue was resolved by new Rule 32.1, (28) one stone in this discussion remained unturned: the precedential status of these unpublished opinions. This fundamental question is explicitly avoided by Rule 32.1:

    Rule 32.1 is extremely limited.... It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court. Rule 32.1 addresses only the citation of federal judicial dispositions that have been designated as "unpublished" or "non-precedential"--whether or not those dispositions have been published in some way or are precedential in some sense. (29) However, while the Committee took no explicit position on what precedential weight is to be accorded these "unpublished" decisions, the Committee has implicitly created a regime in which such decisions are accorded persuasive, but not binding, precedential weight. So at best, the Rule itself takes no position. More practically and realistically, the Rule creates a scheme that accords such decisions only a lesser, persuasive authority--an authority on par with a treatise, law review article, or extra-jurisdictional decision, and a far cry from the binding precedential authority given to a similar case fortunate enough to be designated for publication.

    While all parties are likely weary from the recent struggle over citation of unpublished opinions, all interested parties ought to return "once more unto the breach" (30) to examine, discuss, debate, and resolve the issue of the precedential status of these unpublished decisions. This article is intended to stimulate and reinvigorate that debate by refocusing the discussion on precedent now that the issue of citation has been determined. Part III of this article will briefly outline the history of publication and precedent in ancient, early English, and founding-era common law in the United States. Part IV will similarly examine the modern United States publication practice. Part V will canvass the debate over the precedential status of unpublished opinions focusing on the period of limited publication. Denying the precedential status of decisions of the federal courts suffers potential Constitutional infirmities, fundamentally alters the common law method of jurisprudence, and offends our community understanding of the common law legal system. After reviewing the arguments over whether courts may continue the practice of declaring some opinions non-precedential, Part VI will then discuss whether courts ought to continue denying precedential status to some opinions and touch briefly on proposed solutions that address the practical needs of the federal judiciary.

    One cannot deny the pragmatic difficulties that the federal court system faces in adjudicating the ever-increasing number of cases. In 1970, the Courts of Appeals disposed of 10,699 cases, (31) while in 2005, the Courts disposed of 67,582 cases. (32) During that same period the number of active circuit judges increased much more modestly, from ninety-seven...

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