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Information: A Boom or Bust?
Astrophysicists tell us that over ninety percent of the material in this universe is composed of “dark matter,” particles which can’t be detected other than by observing their gravitational influence.
For attorneys, that dark matter consists of non-precedential or “unpublished” opinions. According to the Administrative Office of the United States Courts, four out of five federal appellate decisions went unreported in fiscal year 2001. A similar situation exists in certain states. While Florida, Maryland and Pennsylvania publish all their opinions, California appellate courts, for example, published a mere six percent of their opinions that same year.
Some like it that way. As Ninth Circuit Judge Alex Kozinski told the House Subcommittee on Courts, the Internet and Intellectual Property last June:
“Quite simply, deciding some cases by unpublished disposition, which is simply a letter to the parties telling them who won and who lost, and why, frees us up to spend the time that needs to be spent on published opinions, the ones that actually shape the law.”
Third Circuit Judge Samuel A. Alito, Jr., who chairs the Advisory Committee on the Federal Rules of Appellate Procedure, echoed that sentiment.
“The Judiciary has been concerned that the universal publication of opinions would either produce a deterioration in the quality of opinions or impose intolerable burdens on judges in researching and drafting opinions,” he said. “It would be virtually impossible for the courts of appeals to keep current with their caseloads if they attempted to produce such an opinion in every case.”
Nevertheless, that may soon be changing. At its November meeting, the Advisory Committee discussed three alternatives and voted 7-1 to proceed with a proposal to adopt a new Appellate Rule 32.1 permitting the citation of unpublished opinions.
Lightening the Load
Unpublished opinions grew out of an attempt forty years ago to reduce the workload and expense for both judges and attorneys. In 1964, the Judicial Conference started encouraging judges to report only those decisions which had general precedential value. By 1974 each circuit had its local rules in place for deciding which opinions to publish, and attorneys generally were forbidden to cite any unpublished opinions.
“This was done in large part for the purpose of dispelling any suspicion that institutional litigants and others who might have ready access to collections of unpublished opinions had an advantage over other litigants without such access,” Alito told the subcommittee.
But a lot has changed in the past three decades. It is no longer necessary to own and scrutinize thousands of printed volumes to find applicable precedent. CD-ROMs and online databases make it cost effective to publish and search a virtually unlimited quantity of case law. As a result, many jurisdictions began making all of their opinions available.
“With the advent of computer assisted legal research, the reference to ‘unpublished’ opinions is now something of a misnomer,” Alito continued, “since the overwhelming majority of opinions are now readily available to the public, often at minimal or no cost because they are posted on court web sites and are now printed in a new series of case books called the Federal Appendix that is available in most law libraries.”
Mending the Split
With these decisions now being readily and economically available, the circuits are split on whether, or under what circumstances, parties may cite unpublished opinions. An Eighth Circuit panel went as far as holding inAnastasoff v. United States that all opinions are precedential. (The full court later vacated that opinion as the case had become moot.) Meanwhile, the Ninth Circuit in Hart v. Massanari and the Federal Circuit in Symbol Technologies v. Lemelson both specifically rejected the reasoning in Anastasoff.
State courts are similarly divided on issue of publication. In addition to the states noted earlier, Alabama, Connecticut, North Dakota and Wyoming publish all their opinions. Other states, however, generally place some restriction on what may be published and cited.
To eliminate the differences between the circuits, the Judicial Council is working on a new rule to standardize the citation of unpublished opinions. At its meeting last April, the Advisory Committee on the Federal Rules of Appellate Procedure instructed the reporter to draft a proposed rule addressing the area. Then, at its November meeting, it voted to adopt a proposal granting parties the same right to cite unpublished opinions as they would any other type of non-precedential material. In doing so, it rejected an option that would limit the citation to when “no precedential opinion of the forum court adequately addresses that issue,” and stated that “[c]iting non-precedential opinions for their persuasive value is disfavored.”
The Advisory Committee will finalize the wording at its Spring meeting.
Unpublished opinions are available online from Lexis-Nexis, WestLaw, Mealey’s and Loislaw and are published in West’s Federal Appendix. Other sources include:
First Circuit- www.ca1.uscourts.gov/opinions/main.php
Second Circuit- www.ca2.uscourts.gov
Third Circuit – www.ca3.uscourts.gov/recentop/week/recnonprec.htm
Fourth Circuit – pacer.ca4.uscourts.gov/opinions/opinion.php
Fifth Circuit – Send written request with $3.00 check to clerk’s office, 600 Camp Street, New Orleans, LA 70130. (504)310-7700
Sixth Circuit – Contact clerk’s office for monthly subscription. 100 E. Fifth Street, Cincinnati, Ohio 45202-3988. (513) 564-7000
Seventh Circuit – Available from clerk for fifty cents per page. Room 2722, 219 S. Dearborn Street, Chicago, IL 60604. (312) 435-5850
Eight Circuit – All opinions precedential
Ninth Circuit – Available for $2 from the clerk, P.O. Box 193939, San Francisco, CA 94119-3939
Tenth Circuit – pacer.ca10.uscourts.gov/opinions/main.php
Eleventh Circuit – Available from clerk for $4.56, Forsyth St. N.W., Atlanta, Georgia 30303 (404) 335-6100.
DC Circuit- https://pacer.cadc.uscourts.gov/main.htmFederal Circuit – Precedential & non-precedential opinions on the court’s electronic bulletin board (202) 786-6584 or (202) 633- 9608
California – www.courtinfo.ca.gov/opinions/nonpub.htm
Hawaii – http://www.courts.state.hi.us/
Virginia – www.findlaw.com/11stategov/va/vaca.html
Washington State – www.findlaw.com/11stategov/wa/waca.html – Included in August 2003 Discovery Update, a later issue:
In an earlier issue of this newsletter we covered proposed changes to the Federal Appellate Rules regarding the citation of unpublished opinions. Three articles from that newsletter are posted on the Atkinson-Baker website (149.d96.myftpupload.com).
At its June meeting, the Committee on Rules of Practice and Procedure approved publishing for comment the new Appellate Rule 32.1, together with other proposed changes to the Appellate, Bankruptcy, Civil and Criminal Rules. The approved text of these changes will be posted on the rulemaking section of the U.S. Courts website (www.uscourts.gov/rules/index.html) along with a form for submitting comments electronically.
The comment period begins on August 15, 2003.