Committee for the Rule of Law
July 14, 2006
Office of the Clerk
Re: Proposed Rule 32.1
I serve as Chairman of the Committee for the Rule of Law. We have been in the forefront of advancing FRAP 32.1. We maintain www.nonpublication.com as a library of materials related to unpublished opinions and no citation rules. Thank you for the opportunity to comment on proposed FRAP 32.1.
We do not object to a classification of non-binding dispositions. Our objection is with the use of the term “non-precedential” to denominate these non-binding dispositions. By definition, prior decisions resolving law to be applied to fact patterns are “precedents” of similar cases. Courts should not redefine the ordinary meaning of words, and therefore should not redefine “precedent” simply to establish a non-binding sub-classification of precedents. Also, such a denomination suggests that these dispositions have no import to the law whatsoever. No disposition of the people’s court of ultimate appeal should have no import to the law. What courts hearing any matter may, and are generally thought to do, is to determine which precedents are to be used to guide future decision-making. Therefore the CAFC may identify some class of dispositions as precedents non-binding upon future courts.
We accept the classification of non-binding appellate dispositions because, in our view, no appellate decision is, or should be, truly binding upon a subsequent court that can articulate logic or appropriate mercy justifying a different outcome. Were it otherwise the power of an appellate panel would be co-extensive with that of the Congress, and exceed the power of its co-panels to engage in the great discussion that then comprises our law. In other words, a doctrine of binding precedent more rigid than subtle requirements of stare decisis inhibits the improvement of our law and human understanding of appropriate conduct over time.
It may seem odd that our committee, having expended so much time and energy to see the end of no-citation rules, is more concerned with binding precedents than non-binding precedents. In our view binding precedents tempt courts to perpetuate error. While perpetuation of error may be justified for the convenience of the community (property rules come to mind), error should never be perpetuated simply for the convenience of a court (admitted by Judge Kozinski), and certainly not simply because correcting the error requires en banc review. It also fails to recognize that good judgment can choose from many equally justifiable resolutions.
Nevertheless ambiguities must be resolved in a stable fashion, and, apparently the Federal Circuit, among a minority of circuits, feels the flexible doctrine of stare decisis needs a bit more rigidity to obtain that objective even if we do not.
We offer an idea for consideration: Appellate dispositions should expressly identify, as what we coin a “Resolve”, those holdings within a published decision that are to have a binding nature for the benefit of the community. Such a practice would reduce points of rigidity in the common law from entire published opinions to necessary specific points, and give clear warning of their existence. Resolves would lessen the safe harbors for the nefarious created by the specific words of a disposition, and, in the spirit of common law, encourage citizens to seek safe harbor in that conduct which is demonstrably fair and generous as to all other issues it addresses. While resolves do appear to be quasi-statutory, they are no more so than “binding precedents”.
Thank you for the opportunity to comment.
Kenneth J. Schmier
Committee for the Rule of Law