Precedent, judicial power, and the constitutionality of "no-citation" rules in the federal courts of appeals.

Author:Laretto, Kenneth Anthony

On April 13, 1996, Faye Anastasoff mailed a tax refund claim to the IRS. The deadline for the claim was April 15; Anastasoff believed that by mailing it before the deadline, the claim was valid. Ordinarily, she would have been right; the so-called "mailbox role" (1) provides that in most instances, a claim is timely upon receipt if it is postmarked by the original deadline. The IRS received Anastasoff's claim on April 16, and rejected it under an obscure exception to the mailbox role. (2) In the ensuing litigation, the district court rejected Anastasoffs claim that the mailbox role applied in her case. (3) On appeal to the Eighth Circuit, the government provided Anastasoff with a copy of Christie v. United States, (4) an unpublished decision involving a fact-pattern identical to Anastasoff's. The Eighth Circuit's Rule 28A(i) provides that "[u]npublished opinions are not precedent and parties generally should not cite them," although such opinions may be cited if they "[have] persuasive value on a material issue and no published opinion ... would serve as well." (5) During oral argument, Circuit Judge Richard Arnold asked Anastasoff's attorney what he thought about the Christie decision. The lawyer's response? "[Christie is] not binding on this court." (6)

The court disagreed. In Anastasoff v. United States, (7) a three-judge panel of the Eighth Circuit ruled that Rule 28A(i), a type of "no-citation" role prevalent among the U.S. Circuit Courts of Appeals, violated the Constitution by conferring a power on the federal courts in excess of the judicial power granted by Article III. (8) The decision meant that every written opinion in the circuit would henceforth have precedential effect. The Eight Circuit convened en banc to review the Anastasoff panel's decision, and vacated the ruling as moot. (9) The constitutionality of Rule 28A(i) remains an open question in the Eighth Circuit. (10)

Recently, a three-judge panel of the Ninth Circuit upheld the constitutionality of no-citation rules. In Hart v. Massanari, (11) Circuit Judge Alex Kozinski maintained that Article III does not require federal courts to treat all of their decisions as binding precedent. (12) Under his analysis, the extent to which a circuit opinion must be followed in future cases within that circuit is a matter of judicial policy, and may be determined with regard to such needs as judicial economy and the prevention of premature adjudication. (13) As both a constitutional and a practical matter, then, the status of unpublished decisions and related no-citation rules has serious implications for the judicial branch, which crafted these policies in an effort to manage burgeoning caseloads in the federal courts of appeals.

This Note discusses the problems created by no-citation rules and provides a number of potential solutions to these problems. Part I describes the history of the debate over nonpublication and no-citation rules, identifying the practical concerns that such rules seek to address and the criticisms to which those rules have been subject. Part II analyzes the constitutional holdings of Anastasoff and Hart, arguing that the text and history of Article III support a doctrine of precedent that, at the very least, gives presumptively binding effect to judicial interpretations of constitutional and statutory law. Part III identifies the authority of precedent as stemming from both the act of adjudication and the reasoning behind a decision, and argues that no-citation rules are therefore constitutionally justified as applied to decisions that are objectively non-precedential. Part IV attempts to resolve the practical and constitutional problems created by no-citation rules, by providing a number of suggestions designed to protect the availability of precedential decisions while respecting the need of judges to quickly dispose of cases having no precedential value.


    The current controversy over nonpublication and no-citation rules stems from an easily identified problem: case volume. (14) As the docket load of the average federal judge increases and is not met with a corresponding increase in the number of federal judgeships, the concern arises that judges are spreading themselves too thin. (15) One way of addressing this concern is to create different classifications of cases; for example, where the governing law makes a case's resolution a fairly straightforward matter, the necessity of crafting an intricately worded opinion for future litigants might not exist. In 1964, the Judicial Conference of the United States issued a recommendation that federal courts only authorize publication of "those opinions which are of general precedential value." (16) Eight years later, the Board of the Federal Judicial Center recommended that the Judicial Conference direct federal circuits to review and modify their publication policies such that 1) opinion publication would require a majority panel vote, 2) unpublished opinions could not be cited in briefs or subsequent court opinions, and 3) the public record of unpublished opinions would contain only the judgment of the court. (17) The circuit courts proposed a diverse set of publication plans, which the Conference hailed as useful for developing a broad position on publication. (18)

    The number of unpublished cases has risen rapidly since 1974. By 1979, when William Reynolds and William Richman finished the first system-wide study of circuit publication plans, (19) the Courts of Appeals were publishing only 38.3 percent of their opinions. (20) Approximately twenty years later, that percentage has fallen to 20.2 percent, with every circuit publishing fewer than half of its opinions. (21) These statistics are especially troubling in light of the circuits' no-citation rules, some of which prohibit the citation of unpublished opinions entirely, except where necessary to decide issues of res judicata, collateral estoppel, or the law of the case. (22) The "nonpublication" controversy has always focused on the no-citation rules. Limited publication of judicial decisions was the accepted course of practice for the Framers, (23) and no one has seriously questioned the ability of courts to determine which of their decisions are fit for publication. What commentators have expressed concern about, however, is the ability of courts to control the body of precedent through limiting citation to their work. (24) No-citation rules are primarily defended as being necessary for judicial economy, and are often criticized because of the wide discretion that judges have in deciding which of their opinions carry precedential value.

    1. Judicial Economy as a Justification for the Noncitation of Unpublished Opinions

      The arguments for and against no-citation rules are based upon a set of assumptions regarding the fundamental purpose of written opinions. Commentators generally agree that written opinions can serve three purposes: 1) explaining the outcome of the case to the parties involved, 2) sharpening the deciding court's reasoning process, and 3) providing a guide to future litigants. (25) Defenders of no-citation rules generally frame their arguments in terms of judicial economy; judges, they say, simply lack the time to write a completely thorough decision in each case, and must ration their resources accordingly. (26)

      The main dispute surrounding unpublished opinions is whether any such thing as an "easy" case exists. An easy case, by definition, would be a case in which the application of the relevant legal principle to the relevant set of facts requires a negligible quantity of legal reasoning. Since the federal circuit courts lack the ability to reject appeals, (27) they often encounter cases in which the law is already well-settled. (28) In such instances, neither the second nor the third rationale for writing an opinion exists. Since the law is well-settled, writing an opinion will not aid the court in resolving the legal issue. Furthermore, if the court relies completely on prior law and need not make any sort of analogical deduction based on the facts, the opinion is essentially worthless as a guide to future litigants. (29) Thus, a court is justified in directing the opinion toward the parties, by assuming knowledge of the basic facts and providing reasoning that is specific to the case at hand. (30) This, in turn, allows the judge to spend a shorter amount of time on the opinion, time that he or she can then devote to other, more difficult cases.

      Since opinions in so-called "easy" cases are written quickly and directed towards the parties (as opposed to future litigants), judges have two reasons for wanting to forbid or discourage their citation. The first and primary reason is that such opinions could potentially mislead litigants because they are not written broadly enough to serve as useful guides in future cases. (31) The second reason also stems from the amount of time a court spends preparing an opinion: a hastily written opinion is potentially unreliable for future litigants, regardless of whether the correct result is reached in the case itself. Limited citation rules for these types of cases free judges from having to spend the huge amounts of time necessary to write full-blown opinions. (32)

    2. Removal of Precedent as an Argument for Limiting Judicial Discretion Not to Publish

      Whereas the primary argument for no-citation rules is fundamentally an argument that judges can and should spend less time on opinions they believe will not be of use to future litigants, the arguments against such rules generally focus on the damage to the legal system as a whole (and to litigants in particular) caused by judicial discretion not to publish. Most of the arguments point out that cases bearing clear precedential significance are being removed from the body of case precedent through the nonpublication/no-citation mechanism. Consider, for example...

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