The Pro and Con of Unpublished Opinions

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26May2011

The Pro and Con of Unpublished Opinions

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Pro – Those speaking in favor of a national rule made these points:

  • Currently, non-precedential decisions are the only sources that parties are explicitly forbidden to cite. In some circuits, a party can cite an infinite variety of nonbinding sources of authority – including everything from decisions of the courts of Great Britain to law review articles to op-ed pieces – but cannot cite a court to its own non-precedential opinions.
  • Non-precedential opinions are widely cited in district courts and in state courts; although they are not binding, they sometimes can be persuasive. It is odd to have the non-precedential opinions of a court of appeals used to persuade district courts and state courts, but not used to persuade the very court that authored them. This is particularly odd when a district court relies heavily on a non-precedential opinion in issuing a ruling, that ruling is appealed to the court of appeals, and the parties are not permitted to cite or discuss the non-precedential opinion on which the district court so heavily relied in deciding the case.
  • The no-citation rule borders on raising civil liberties concerns. This is the one place where a court rule specifically forbids an attorney from making an argument that the attorney believes will help the client.
  • Non-precedential decisions are widely available today – on the Internet and now in the Federal Appendix – and thus permitting citation of such decisions would no longer give a substantial advantage to the Justice Department, insurance companies, and other large, national litigators.
  • Prohibitions on the citation of unpublished opinions give parties an incentive to play games to find ways of hinting to the court that it has issued non-precedential opinions on a point.
  • Liberalizing the rule will not “open the floodgates.” Practitioners will continue to have an incentive not to cite non-precedential decisions as to do so is tantamount to admitting that no precedential decision supports one’s position.
  • The Department’s proposal addresses only the citation of non-precedential opinions. It does not in any way purport to tell courts whether or in what circumstances they can designate opinions as non-precedential.

Con – Those speaking against a national rule pointed out the following:

  • There continues to be substantial opposition to such a rule among the chief judges of the circuits. Those chief judges make up half of the membership of the Judicial Conference, and the district court judges who make up the other half are likely to defer to the circuits on this proposal.
  • Many circuit judges will view this as the first step on a path that will eventually lead to the abolition of non-precedential opinions, which are unpopular among practitioners but essential for the survival of the federal appellate courts.
  • The caseloads of appellate judges do not permit them to devote substantial time to writing careful opinions in every case. Judges are able to get non-precedential opinions out quickly precisely because they know that the opinions will not be cited. Forcing all circuits to permit citation of non-precedential opinions will ensure either that decisions are rendered much more slowly or that more cases are disposed of without any opinion. Both options would be worse for parties and counsel than the current situation.
  • The no-citation rule does not deprive the courts and litigants of anything of value. Because non-precedential opinions are not written with as much care, and particularly because they usually say little about the facts, the opinions are of almost no value to anyone but the parties.
  • The amount of published case law has grown exponentially, and it is getting more and more difficult for judges and practitioners to keep up with precedential decisions. They should not also be burdened with having to keep up with the huge number of non-precedential decisions.
  • Circuits forced to allow citation to their non-precedential opinions will simply make their opinions so cryptic as to be useless to anyone but the parties.
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