Tuesday, April 13, 2004




                       One Columbus Circle, N.E.

                         Washington, D.C. 20544











      MARK I. LEVY, ESQ.





      Representative of Solicitor General





      Circuit Court



      Federal Judicial Center





      Secretary, Commission on Rules of Practice and










      Chief, Rules Committees Support Office







                            C O N T E N T S


      TESTIMONY OF:                                PAGE


      Hon. Myron H. Bright, United States            6

      Circuit Court of Appeals for the Eighth

      Circuit, Fargo, ND


      Honorable Diane P. Wood, United States        24

      Court of Appeals for the Seventh Circuit,

      Chicago, IL


      Richard Frankel, Goldberg-Deitzler Fellow,    66

      Trial Lawyers for Public Justice,

      Washington, D.C.


      Judah Best of Debevoise & Plimpton, on        86

      behalf of the Section of Litigation,

      American Bar Association, Washington, D.C.


      Professor Stephen R. Barnett, Elizabeth       101

      J. Boalt Professor of Law, Emeritus,

      University of California, Berkeley

      (Boalt School of Law), Berkeley, CA


      Honorable Haldane Robert Mayer, Chief         126

      Judge, United States Court of Appeals

      for the Federal Circuit, Washington, D.C.


      Honorable John M. Walker, Jr., Chief Judge,  182

      United States Court of Appeals for the

      Second Circuit, New Haven, CT


      Carter G. Phillips of Sidley Austin Brown    200

      & Wood, LLP, chair of the Federal Circuit

      Advisory Committee, Washington, D.C.


      William T. Hangley of Hangley Aronchick      210

      Segal & Pudlin, on behalf of the

      American College of Trial Lawyers,

      Philadelphia, PA, and James Morris,

      President-Elect, American College of Trial

      Lawyers, Richmond, VA


      Honorable Edward R. Becker, United States    235

      Court of Appeals for the Third Circuit,

      Philadelphia, PA



                      C O N T E N T S (Continued)


      TESTIMONY OF:                                PAGE


      Jessie Allen, Associate Counsel, Brennan     257

      Center for Justice, New York University

      School of Law, New York, NY


      John A. Taylor, Jr. of Horvitz & Levy LLP,    274

      chair of the California State Bar

      Association Appellate Courts Committee,

      Encino, CA


      Steven R. Wallach of Morrison Cohen Singer    314

      & Weinstein, LLP, New York, NY


      Brian Wolfman, Director, Public Citizens      325

      Litigation Group, Washington, D.C. 




  1                      P R O C E E D I N G S


  2             JUDGE ALITO:  Can we come to order?  We're


  3   here this morning to hear statements concerning a


  4   number of rules that we have published for comment.


  5   We've received over 500 comments.  Most of them


  6   have been about a rule concerning unpublished


  7   opinion or our rule concerning the counting of


  8   votes for rehearing en banc.  We've also had


  9   comments on a new proposed rule regarding briefing


 10   in cross-appeals, not very many comments on our


 11   proposal to change the reference to President's Day


 12   to Washington's Birthday, but maybe one of the


 13   witnesses this morning will want to comment on


 14   that.


 15             We appreciate the tremendous line-up of


 16   witnesses that we have this morning representing a


 17   broad array of views and a great deal of


 18   experience.  The first witness on our list is the


 19   Honorable Myron H. Bright, United States Court of


 20   Appeals for the Eighth Circuit.  Judge Bright?




 22             JUDGE BRIGHT:  Good morning, Mr. Chairman




  1   and members of the committee, staff, and guests.  I


  2   am the first hitter, lead-off, so I don't expect to


  3   be like Casey and strike out but I'll do the best I


  4   can.


  5             I'm really very pleased to be here to


  6   discuss Rule 32.1, as proposed, and to tell you why


  7   I oppose it.  I do so on the basis of my


  8   experience.  I've been a federal appellate judge 35


  9   plus years and I've sat with many of the courts and


 10   I've been a senior judge now for almost 19 years.


 11   And I might mention that as a senior judge I've


 12   served frequently not only in my own circuit, which


 13   is the Eighth, but I've served with the Second, the


 14   Third, the Sixth, the Ninth, and the Eleventh


 15   Circuits and somewhat less consistently with the


 16   Fifth, the Seventh and the Tenth Circuits.  So I've


 17   been around a while.


 18             I'm at the stage of life, incidentally,


 19   known as the fourth stage.  The first stage is


 20   young.  The second stage is middle-aged, as some of


 21   you are.  The third stage is a little older, as


 22   maybe one or two may be around here.  And the




  1   fourth stage is "You're looking good."  In point of


  2   time and seniority, I'm the ninth in point of


  3   service of all of the appellate judges in this


  4   country.


  5             Now I know you've had hundreds of comments


  6   on Rule 32.1, some for, some against, and Dean


  7   Schiltz--you know, I always mispronounce that,


  8   Dean.  I should know it because my daughter married


  9   a guy by the name of Schultz, which is not too far


 10   different.  And I know you've given the committee


 11   and those of us who are testifying and others


 12   really a very good summary and a conclusion, which


 13   I may not agree with in all events but you have


 14   your views and I certainly respect them.


 15             I'm speaking here for the Eighth Circuit.


 16   As you know, Jim Loken, our chief judge, has


 17   written a letter pointing out that 10 of 13 judges


 18   on our court who responded opposed the rule and


 19   three approved the proposed rule.  I also speak on


 20   my own behalf and most of the remarks are really my


 21   own views.


 22             While I'm going to speak on my experience,




  1   I want to mention four letters, three of which you


  2   have and the fourth one you'll have because it was


  3   written to me.  Those letters are really quite


  4   significant to me because they represent a spectrum


  5   of people that I know and respect and their views


  6   are pretty important.


  7             On one side of the coin is Ken Starr.


  8   Now, as you know, he was an appellate judge.  He's


  9   now an appellate attorney and soon, Patrick, he's


 10   going to be a dean.  On the other side of the coin


 11   is a person who's been an appellate practitioner


 12   and I've done programs with him and is now an


 13   appellate judge, and that's Tim Dyk of the Federal


 14   Circuit.  I also have a great deal of regard for a


 15   letter which I have from Gerald Tjoflat of the


 16   Eleventh Circuit.  He and I go back a long time.


 17   We've served on committees together.  We've been


 18   great friends.  And I have a copy of that letter,


 19   which I'll see that you get.  And the fourth is


 20   from the Attorney General when I became a judge,


 21   and that's Ramsey Clark.


 22             Let me go back a little bit in appellate




  1   history.  If there were a perfect appellate world,


  2   when I became a member of the court it was almost


  3   perfect.  We heard arguments in every case unless


  4   it was a pro se appeal, no lawyer, or unless it was


  5   just frivolous and dismissed.  We gave each case


  6   full treatment, published an opinion unless it had


  7   been dismissed earlier.


  8             Well, we soon had to change.  The Eighth


  9   Circuit adopted the nonpublication rule in 1973 and


 10   we followed the leading circuit, and that was a big


 11   Fifth Circuit which just had so many cases that


 12   they had to do something, so they developed a


 13   program of screening the cases, putting them on a


 14   fast track with no argument if they didn't seem to


 15   justify full treatment and writing a very short


 16   opinion, really for the parties and giving their


 17   reasons therefore.


 18             In the '70s and '80s, with the litigation


 19   explosion and, of course, the increase in appeals


 20   in the federal courts, that nonpublication rule


 21   really became a judicial necessity.  The language


 22   "unpublished" simply means, to me, that we judges




  1   have not had the time to carefully write an opinion


  2   to worry about precedent and we really concentrate


  3   only on is the result right?  And lots of times the


  4   work on opinions, maybe most of the time, is not


  5   our own.


  6             Let's turn for a moment though to compare


  7   how I as an appellate judge and I think many of the


  8   appellate judges look at a case as compared to the


  9   lawyers, and there are a number of lawyers who are


 10   here and are in favor of the proposed rule and part


 11   of it, I think, is because the perspective on which


 12   we're on.


 13             Now with the appellate lawyer, and many of


 14   you have or are appellate lawyers, the appellate


 15   lawyer really puts the sources together, puts the


 16   cases together and serves it out to us on a plate.


 17   Not too much of it is original except how it's


 18   arranged.  On the other hand, when we have to write


 19   an opinion for precedent, we are really an author.


 20   We're a creative writer.  When I was first a judge


 21   and it just scared the living you-know-what out of


 22   me and I'd done a lot of appellate work but it was




  1   different.  And, as you know, writing an opinion is


  2   different.               So there's a difference of


  3   perspective there, members of the committee.


  4             Listen, I've written on cases, and many of


  5   you have, and I've worked weeks, sometimes months


  6   on a case and it takes very thoughtful, careful


  7   writing and editing to write an opinion which you


  8   know is going to be precedent.  It requires


  9   extensive work and very careful writing.  I try to


 10   make every phrase, every sentence, even every


 11   paragraph really meaningful and right to the point.


 12             Now I want to remind you that to change


 13   the no-citation rule to allow all opinions to be


 14   cited puts into the inventory of cases each year


 15   about 20,000 of the 27,000 cases decided by the


 16   appellate courts.  About 80 percent of the cases,


 17   as you know, are nonpublished opinions.


 18             Sometimes I think there's too much law out


 19   there, you know?  The Federal Reporter Second was


 20   391 when my name appeared as a judge and now it's


 21   at 370 Federal Third, 969 volumes later, and the


 22   volumes are thicker now, you know?  Estimating at




  1   1,500 pages per volume and that's not a bad


  2   estimate, I don't think, we have between 1.3 and


  3   1.4 million pages of legal writing.


  4             I make two other comments.  I know you've


  5   been exposed to the argument that if unpublished


  6   opinions are citable, judges will take time away


  7   from the important cases that they want to write a


  8   publication opinion on and will not be able to


  9   spend that much time.  I think that argument is


 10   well taken.  Adding so much law in over 20,000


 11   opinions published each year will really mean from


 12   a research standpoint the cup runneth over.


 13             I'm a firm believer, having sat with many


 14   circuits, that while the way we sit and the way we


 15   decide cases is pretty much the same, the


 16   procedures vary and I believe that the circuits


 17   should have the right and prerogative to handle


 18   their own caseload in the best way possible.  As


 19   you know, some courts don't allow any citation of


 20   unpublished opinion except in narrow areas, like


 21   res judicata, law of the case, and so forth, and


 22   others allow it in limited circumstances.




  1             Now I want to mention a couple of circuits


  2   and I know that Judge Walker's going to be here


  3   from the Second Circuit but I've sat there many


  4   times and I love that court because they hear


  5   arguments on almost everything and I love to hear


  6   oral argument.  But in those cases we hear the oral


  7   argument, we've done our preparation, we really on


  8   the bench ordinarily say, "Is there anything to


  9   write?"  "Well, we're going to affirm."  The judge


 10   writes a short opinion, usually the presiding


 11   judge.  The other two judges take a quick look and


 12   concur and the next day there's an order going out,


 13   which usually affirms.  Very few unpublished


 14   opinions reverse that I've seen and they shouldn't.


 15             Now I see no reason in the Second Circuit,


 16   for example, to make those opinions published and


 17   citable without a lot more work on the part of the


 18   judges.


 19             Now the Ninth Circuit has its own special


 20   problems.  They hear about 5,300 cases a year.


 21   They've got 28 active judges and--I don't know--I


 22   think about 17 senior judges and a lot of the




  1   publication of those opinions really would create a


  2   problem and I think most of the judges have written


  3   to you about them.  And I'm not going to mention


  4   anything special except that I think the criticism


  5   of its nonpublication rule is really not well


  6   taken.


  7             I'm going to put the Third, the Sixth, and


  8   the Eight Circuits together because all three of


  9   those circuits allow publication under certain


 10   circumstances.  As a matter of fact, I think in the


 11   Third Circuit there really are no bars to it but to


 12   tell you the truth, I have rarely if ever--well, I


 13   have but I've rarely seen an unpublished opinion


 14   brought to the attention of the court.  The one


 15   case that I do recall once in a while, and we do


 16   get them once in a while, would be sentencing


 17   guideline cases because many of those are


 18   unpublished and probably should not be published,


 19   except in the few instances where there's a new


 20   twist to some of the guidelines.


 21             In our circuit we had an absolute


 22   no-publication rule except for limited exceptions,




  1   like res judicata, and so forth, until 1994 and


  2   then we put in this so-called persuasive rule.  If


  3   there's no case otherwise citable, you can cite an


  4   unpublished opinion.  Well, it hasn't caused any


  5   problems and I haven't seen really, as I've told


  6   you, much in the way of unpublished opinions.  I


  7   know there was one mentioned in the famous or


  8   infamous Anatasoff case, and I won't go into that.


  9             Well, I suppose you could say what's the


 10   beef?  What's the big deal?  It's not causing any


 11   problems.  Well, let me tell you:  Rule 32.1 trumps


 12   the advice that we give not to cite unpublished


 13   opinions.  It really puts on the same level to the


 14   appellate lawyer that he or she can cite an


 15   unpublished opinion and it makes a difference to


 16   us.  Really while the argument made in an


 17   unpublished opinion may always be repeated in a


 18   brief, what the lawyers want is the imprint of


 19   three judges on that opinion.  And let's face it.


 20   If we know that our so-called unpublished


 21   nonprecedential opinion can come back, we've got to


 22   take more care in writing.  We've got to look over




  1   it a lot more carefully.  And I think the rule of


  2   unintended circumstances may well apply, with the


  3   result being that unpublished opinions will be


  4   treated by lawyers, publishers and the academia as


  5   part of the necessary research for making an


  6   appellate argument and writing a brief, and I think


  7   that's going to be more work for everybody.


  8             Moreover, it forces the courts to change


  9   their operations without their consent.  And you


 10   can bet the lawyers will seek out the unpublished


 11   opinion that may contain language supporting their


 12   views affecting briefing in appeals courts, as well


 13   as trial courts.


 14             Now listen.  If all of the lawyers who are


 15   going to appear in this committee were the quality


 16   of the lawyers that appear before us, I wouldn't


 17   worry about it because there wouldn't be an


 18   unpublished opinion that would be cited unless it


 19   was the rare case, but that's not true.  The


 20   quality of lawyers who appear in appeals varies in


 21   sections, in circuits, and otherwise.


 22             Now I really think that the adoption of




  1   this Rule 32 and the opening up of four to five


  2   times more cases possibly being cited than now is a


  3   mistake and it's going to probably mean an


  4   unintended circumstance, at least for me and I


  5   don't want to do it because I like to say something


  6   in my unpublished opinions.  You know, we can say


  7   just affirmed or enforced under our rule, I never


  8   do that except in an unusual case.  I try to give


  9   the parties some reason and I think it could go the


 10   other way.  I would hope not but unless you're


 11   going to increase judge power, law clerk power to


 12   take care of the new problems that may well surface


 13   under 32.1, I think we've got something that should


 14   not be enacted.


 15             I've served on this committee for a time


 16   and I know that it's the tradition not to press for


 17   a rule unless it has near unanimity for its


 18   adoption.  That's not so here.  Almost all the


 19   federal judges oppose the rule. In addition to the


 20   judges, I know you have a lot of letters from


 21   lawyers and I've sort of surveyed the appellate


 22   lawyers in my circuit.  Many of them would like to




  1   have the rule or at least say well, I'd like a


  2   national rule, just like we have it in the Eighth


  3   Circuit, but recognizing the problems that it may


  4   make for judges and for lawyers, there are many who


  5   have said we don't think you need a national rule.


  6   And let's face it.  Most lawyers don't practice in


  7   more than one circuit and there's no problem in


  8   learning the rules of the circuit.


  9             Well, what do I think?  Let me give you my


 10   views from a practical standpoint.  Number one, if


 11   it ain't broke, don't fix it.  Number two, don't


 12   open the door to a new rule unless you can clearly


 13   see what's on the other side.  And number three, I


 14   echo Dean Patrick because soon and even now under


 15   the E-Government Act of 2002, all written opinions


 16   of the court will be on line.


 17             Therefore, I think the proposed Rule 32.1


 18   should be dropped and let each circuit deal with


 19   this new E-Government Act and decide whether


 20   changes in procedure are to be made in light of the


 21   computer age and the E-Government Act.  Anyway,


 22   speaking of the computer age, I just came back from




  1   computer school at age 85 and I wasn't the only


  2   older judge there.


  3             So anyway, Mr. Chairman and members of the


  4   committee, thanks for your time and it's been a


  5   pleasure.  If there are any questions I'd be glad


  6   to answer them and I'm going to give John a copy of


  7   my extended remarks that yo can have in case you


  8   want to refer to them.  Thanks, John.


  9             JUDGE ALITO:  Thank you very much, Judge


 10   Bright. Let me ask you a question to start out that


 11   draws on your unique experience of having sat with


 12   so many different circuits.  I don't think any of


 13   our other witnesses has had that experience.


 14   You've sat with circuits that prohibit the citation


 15   of unpublished opinions, circuits that have no


 16   prohibition, circuits that limit the citation to


 17   certain circumstances, I guess including your own


 18   circuit.


 19             I wondered if you have noticed any effect


 20   that these local rules have had on either the work


 21   of the lawyers or the work of the judges.  We've


 22   had conflicting comments from a variety of




  1   commenters.  We've had those who've predicted that


  2   if Rule 32.1 is adopted many very serious adverse


  3   consequences will occur.  We've had others who've


  4   said that if you look to the experiences of the


  5   circuits that do not prohibit the citation of


  6   unpublished opinions, there's really very little


  7   evidence, if any, that this has had any major


  8   effect either on the work of the lawyers or on the


  9   work of the courts.


 10             And I wondered whether you have noticed


 11   that in the circuits where the citation of


 12   unpublished opinions is allowed that when you are


 13   preparing for an argument you have been burdened


 14   with a great many citations to unpublished opinions


 15   that don't seem to be well written or well reasoned


 16   and whether this has materially, the knowledge that


 17   the opinion will be citable when you're writing an


 18   unpublished opinion, has made the process of


 19   producing the opinion much more burdensome than it


 20   is in the circuits that prohibit their citation.


 21             JUDGE BRIGHT:  I'm glad to answer that


 22   question.  I'm going to focus it right on your




  1   circuit because I've been sitting there for a long


  2   time, even before Judge Becker was chief, and he


  3   and I have been close friends.


  4             I have to say in all honesty there really


  5   doesn't seem to be any difference.  I've sat on the


  6   Third Circuit.  There may have been some


  7   unpublished opinions that have been cited.  I can't


  8   remember them and I didn't pay any attention to


  9   them if I could.  And the same goes in every one of


 10   the circuits--even the Eighth Circuit, the same.


 11             But there's a difference and the big


 12   difference is this.  Right now every one of the


 13   circuits has a warning--we don't want to hear


 14   unpublished opinions but you can cite it if really


 15   it's persuasive, something like the Eighth Circuit.


 16   That's true, I think, in almost all the circuits.


 17   It's certainly true in the circuits where I've sat


 18   and they allow publication.


 19             But if you're going to make it a level


 20   playing field with this new rule, there's no longer


 21   to be the deterrence.  Sure, the court can say we


 22   don't like you to cite them but the rule says you




  1   can, but the main rule is going to put nonpublished


  2   and published opinions as far as being in the


  3   briefs on the same level.  And if I were sure that


  4   it wouldn't make any difference I'd say go ahead,


  5   but I am not sure.  I really think if you open the


  6   doors, you're going to cause a problem.  And if it


  7   isn't a problem today, let's not change it.


  8             Anything else?


  9             MR. SVETCOV:  Can I say you look terrific,


 10   Judge?


 11             JUDGE BRIGHT:  Thank you.  I tell you, I


 12   stopped in to see the chief.  We've been friends


 13   for a long time.  As a matter of fact, I always say


 14   I was his token Democrat who went to his swearing


 15   in as chief and also went to his party that evening


 16   and I said to him, "You're looking good" and he


 17   said to me, "You're looking good."  Thank you.


 18   Thank you very much.  It's been a real pleasure.


 19             JUDGE ALITO:  Thank you very much.


 20             JUDGE BRIGHT:  By the way, John has a copy


 21   of my extended remarks.  Thank you.


 22             JUDGE ALITO:  Thank you.  The Honorable




  1   Diane P. Wood, United States Court of Appeals for


  2   the Seventh Circuit.




  4             JUDGE WOOD:  Well, good morning to


  5   everyone.  I really do appreciate the opportunity


  6   to be here to offer my thoughts on proposed Rule


  7   32.1.  The Seventh Circuit, as you know, is one of


  8   the stricter circuits.


  9             Both for the reasons explained in the


 10   letter that a majority of judges of our court


 11   submitted and for some additional reasons I'd like


 12   to highlight this morning, I and most of my


 13   colleagues oppose this proposed rule.  On top of


 14   that, I think the flaws are deep enough that I


 15   don't think they would be cured by a further study


 16   of this particular solution to the set of problems


 17   the committee has been thinking about.  So I urge


 18   the committee to table this proposal indefinitely


 19   and to continue to entrust the manner in which


 20   legally binding precedent is developed to the


 21   discretion of each circuit.


 22             Now while it is an undeniable fact that




  1   thousands of dispositions in the Federal Courts of


  2   Appeals fall under the noncitation rules and I'm


  3   going to try to call this a noncitation rule, some


  4   80 percent of the matters terminated most recently,


  5   the year ending 2003, it's far less clear that this


  6   constitutes a serious problem.  The committee note,


  7   as I observed, and I looked at most of the comments


  8   that had been filed, offers several reasons for


  9   taking this action but I think each one can be


 10   challenged.


 11             One reason is that there's a need for


 12   national uniformity with respect to citation


 13   practices and that uniformity should be achieved in


 14   the direction of liberalizing citation practices


 15   instead of the opposite direction.


 16             Second is a reason that I'm thinking of as


 17   something like a truth in labeling requirement.


 18   The present orders, memoranda, and so forth are out


 19   there.  They're produced by the circuits.  Why


 20   pretend they aren't out there?  You know, it seems


 21   that if they are out there and they're real


 22   decisions of real courts, we ought to treat them




  1   that way.


  2             A third reason is that we ought to prefer


  3   a more open system in which there are no limits on


  4   materials that counsel or the parties can call to


  5   the court's attention--I suppose if it were a pro


  6   se case--at least when, as is asserted to be the


  7   case, there's very little cost to doing so.


  8             And the fourth was a comment that this


  9   rule change would lighten the burden on attorneys,


 10   who have to decipher every circuit's citation


 11   rules.


 12             Let me address these points one at a time


 13   but I want to begin with something that seems to me


 14   like a dog that's not barking.  No one I think


 15   anymore is seriously arguing that proposed Rule


 16   32.1 is necessary to counter an impression that


 17   there's some secret law of the circuit hidden away


 18   in so-called unpublished orders.  That story simply


 19   cannot hold water in the 21st Century court system.


 20             As Judge Bright just commented, as you


 21   certainly are well aware, whatever discrepancies


 22   there may have been in that regard are soon to be




  1   cured by the E-Government Act, which assures that


  2   every court of appeals will put everything on its


  3   website.  In fact, in the Seventh Circuit we've


  4   been doing that for years.  That means that with


  5   free Internet access--maybe you'll go to the public


  6   library or whatever--every last word coming out of


  7   the Courts of Appeals is available to anyone with


  8   the skill and the access to navigate these free


  9   websites, both inside and outside the judiciary.


 10   For those with the resources to use Westlaw or


 11   Lexis, access is even easier.  So we're not talking


 12   about a secret law problem.


 13             The discussion we're having today deals


 14   solely with the question whether each and every


 15   publicly available decision of the courts may be


 16   raised in submissions to those courts in support of


 17   the litigant's position.  So let me turn to these


 18   arguments and just run through them briefly.


 19             What about the hardship point?  Well, it


 20   was first quote notable to me that quite a few


 21   distinguished members of the bar who submitted


 22   comments to this committee flatly disagreed with




  1   that prediction.  They pointed out the circuit


  2   rules aren't really that hard to find.  They're on


  3   the websites, too.  All you have to do is click


  4   over to the website and you can see everybody's


  5   local rules.  And no responsible appellate lawyer


  6   is going to omit checking out the local rules just


  7   because of publication versus nonpublication.


  8   There are too many others rules you have to look


  9   at.


 10             Most importantly, I think, just as we


 11   suggested in our comments from the Seventh Circuit


 12   judges, attorneys from private firms, from public


 13   interest groups, and others think that the true


 14   hardship is going to come from the need to deal


 15   with this enormous body of decisions that are


 16   presently designated for nonpublication.


 17             It reminds me a little bit of one of my


 18   favorite scenes from a movie.  I'm a big Indiana


 19   Jones fan and as you may remember, the very last


 20   scene of "Raiders of the Lost Ark" deals with the


 21   question where are they going to hide the ark?


 22   Where are they going to keep it where it's




  1   absolutely safe?  And you see some men trundling it


  2   down on a hand cart in an enormous warehouse in


  3   some--I always think of Suitland out here in


  4   Maryland, but they're hiding it in the midst of


  5   this giant mass of boxes and I have a feeling that


  6   the worthwhile things are going to be hidden in a


  7   similarly huge mass of cases.


  8             This 80 percent number is a worthwhile


  9   number to think about.  By adding these noncitable


 10   dispositions to the body of law a competent lawyer


 11   will want to look at, the research load for the


 12   lawyer will increase some fourfold.  If clients are


 13   paying for the hour their bills will go up.  It


 14   will hit the poor and the middle class and I think


 15   it's hardly the direction we want to take when


 16   we're really worried about the spiraling cost of


 17   litigation.              So it would be worth it if


 18   there were some marginal benefit but I suggest


 19   there is very little marginal benefit.


 20             If you're having trouble sleeping some


 21   night let me recommend that you sit down and read


 22   two or three weeks worth of the Seventh Circuit's




  1   unpublished and noncitable orders, the orders that


  2   say "Do not cite; see Circuit Rule 53," every one


  3   of which I assure you I read.  You will find


  4   prisoner cases where the prisoner failed to allege


  5   that a prison official acted with the necessary


  6   malice to make out an Eighth Amendment violation.


  7   You'll find Social Security cases where we say,


  8   "Yeah, the administrative law judge had substantial


  9   evidence to rely on, so we're affirming the


 10   disposition."  You'll find immigration cases where


 11   we say the same thing.


 12             You'll find employment cases where the


 13   plaintiff failed to make out one element of the


 14   McDonnell-Douglas prima facie case, adding to the


 15   mountain of McDonnell-Douglas cases that are out


 16   there.  And you'll find Anders brief after Anders


 17   brief after Anders brief where the order rehearses


 18   why counsel has correctly concluded that this


 19   appeal is absolutely without merit and so we grant


 20   the motion to dismiss the appeal.


 21             Each of these orders typically includes a


 22   discussion of some basic standards of law.  It




  1   might be the standard of review.  It might be basic


  2   principles of administrative law if it's a Social


  3   Security case or an immigration case.  It might be


  4   basic principles about employment discrimination


  5   cases, whatever it may be.  In the Anders briefs we


  6   might have a little section explaining why a Fourth


  7   Amendment challenge would be an utter frivolity, so


  8   you talk about that.


  9             These are principles of law that would


 10   apply in a meritorious case but they're just


 11   rehearsed for the benefit of the parties in these


 12   orders, as we call them.  So I think they would do


 13   nothing but clutter up the research of someone


 14   faced with a genuine issue in one of these areas.


 15             All right, so that gets me to the point


 16   that I think it would be a fallacy to think that


 17   this rule would be cost-free from the standpoint of


 18   courts.  I know a lot of commentators have pointed


 19   out to you that the effort in the rule to draw a


 20   distinction between something that's citable and


 21   something that's precedential is perhaps based on


 22   unrealistic hopes and I think that that's quite




  1   right.


  2             If the cited order is the work product of


  3   our court, if we have to study the facts to see if


  4   they're distinguishable from the case presently


  5   before us, if we should either follow the precise


  6   formulation of the rule of law or explain why we're


  7   not doing so, in sort, if we really have to treat


  8   this thing as a full-fledged precedential opinion


  9   of the court, then it is a full-fledged


 10   precedential opinion of the court.  You know the


 11   old saying--if it walks like a duck and quacks like


 12   a duck, and so forth.


 13             It is and it's hard for me to see how if I


 14   was looking at one of these endless


 15   McDonnell-Douglas unpublished orders, which by the


 16   way in our court come when it's a pro se appellant


 17   because we give oral argument and publish in every


 18   single case where there's a lawyer on both sides,


 19   then  it's just not something that's going to be a


 20   very fruitful process for us.


 21             So I also would point out with this vastly


 22   increased pool of cases, the chances of both




  1   intracircuit conflicts are magnified and


  2   intercircuit conflicts.  Intracircuit conflicts


  3   will place an extra burden on the en banc courts.


  4   Intercircuit conflicts may have the undesirable


  5   effect of bloating the Supreme Court's certiorari


  6   docket.


  7             Now as Judge Bright certainly pointed out,


  8   I think there can be no denying the fact that the


  9   workload on judges will increase.  I don't think


 10   any of us around this table thinks judges are being


 11   lazy right now or underworked, so that's something


 12   to be concerned about, as well.  Resources are


 13   shrinking for the judiciary, not expanding, and I


 14   think that's a point to remember.


 15             Recall--actually, this is way back in the


 16   day when I was a law clerk in the Fifth Circuit.


 17   Judge Griffin Bell at that time was taking the lead


 18   on the Fifth Circuit, which in those days was the


 19   old Fifth Circuit, all the way over to Florida, in


 20   creating the innovations, then innovation in the


 21   mid-'70s to which Judge Bright referred--case


 22   screening, decisions whether oral argument should




  1   be given in various cases or not, and this was


  2   because the caseloads were really starting to


  3   explode around the country.


  4             We thought it was bad then.  I compared


  5   the number of cases my judge, Irving Goldberg of


  6   the Fifth Circuit had decided the year I clerked


  7   for him with the cases I had the first year I was


  8   an appellate judge on the Seventh Circuit and it


  9   was more than doubled.  I thought, "Boy, I thought


 10   I was working hard."  That would be the reason.


 11   There's just more out there.


 12             So I don't think the need for effective


 13   docket management has decreased since Judge Bell's


 14   day; it has only become more severe.


 15             Now let me quickly move--I know the


 16   committee has lots of people to hear.  I think


 17   truth in labeling sounds like a good idea but in


 18   some sense no one is pretending that those opinions


 19   aren't out there.  What we're saying instead is


 20   these opinions, these orders, unpublished,


 21   uncitable documents, are routine applications of


 22   routine principles of law with explanation for the




  1   benefit of the parties.  That's a good thing to do.


  2   The parties deserve to hear from us, the judges,


  3   why they win or why they lose.  We are not arbitral


  4   tribunals and indeed arbitral tribunals sometimes


  5   explain, as well.  We're public courts and we


  6   should tell the parties why they win or lose.


  7   Otherwise, as my Chief Judge Joel Flaum likes to


  8   say, we're going to look like the Emperor Nero


  9   going out with a thumb's up or a thumb's down and


 10   seeming just as arbitrary as I guess we all assume


 11   that particular emperor was.  So I'm going to come


 12   back to another point in a minute.


 13             Let me spend just an extra minute on the


 14   uniformity point.  This is a very serious issue.


 15   Sometimes uniformity is a good thing but sometimes


 16   it can be used to stifle local experimentation.  I


 17   think of the Supreme Court's constant praise for


 18   using the states as laboratories for innovation.


 19   The same thing is true of the circuits in many


 20   ways.  Note it was a circuit--it was the Fifth


 21   Circuit that began to develop the tools on which we


 22   all rely today.




  1             On top of that, a superficial uniform rule


  2   superimposed on extremely different circumstances


  3   is not going to produce uniform results.  It's


  4   going to produce dissimilar results because, as it


  5   were, the data that feeds into it is going to be so


  6   different.


  7             Now a lot of people have already commented


  8   and everybody here knows that the 13 circuits vary


  9   tremendously.  They vary in geography, caseload.


 10   We have one specialized circuit, the Federal


 11   Circuit.  The D.C. Circuit has its own unique


 12   aspects.  And they differ in myriad other ways.


 13   That's obviously true.  That alone is enough to


 14   counsel caution, I think, in assuming that we have


 15   a one-size-fits-all situation.


 16             But there are some other ways that I think


 17   we also want to pay attention to variations in the


 18   circuits.  These include allocation of cases to the


 19   oral argument docket versus the nonargued docket,


 20   the percentage of cases that are resolved by a


 21   published, fully precedential opinion, and the use


 22   of various summary disposition techniques.  These




  1   are incredibly different among the circuits.


  2             Let's deconstruct this 80 percent number I


  3   referred to a minute ago.  The AO says that out of


  4   some 27,000 opinions or orders filed in cases


  5   terminated on the merits, and these statistics weed


  6   out very routine jurisdictional dismissals for the


  7   people who waited 120 days to file their notice of


  8   appeal or something like that, it's about 80


  9   percent unpublished.  Then they divide it up into


 10   other categories--written signed dispositions,


 11   written reasoned and unsigned, and written reasoned


 12   and no comment.  Then within each of those


 13   categories they say, "How many are published?  How


 14   many are unpublished?"


 15             The variations among the circuits are


 16   enormous.  The Second Circuit, for example, had a


 17   total of almost 2,000 opinions or orders of all


 18   kinds.  The published 438 written signed opinions.


 19   1,451 were unpublished, written and signed opinions


 20   and 45 were published, written and unsigned.  Now


 21   they don't use written and unsigned without comment


 22   at all.




  1             In the Seventh Circuit, as I mentioned a


  2   minute ago, our practice is completely different.


  3   In our case a written, signed opinion is a synonym


  4   for a published opinion.  We don't do it the other


  5   way.  Zero of our written and signed opinions were


  6   unpublished.  And out of our total of 1,404 cases,


  7   581 were published, written and signed, zero


  8   unpublished, written and signed.  And in the


  9   unsigned opinion group, which is our orders, 22


 10   were published written explanations and 765 were


 11   unpublished.


 12             You could go through--you'll have the


 13   statistics available to you with the charts and


 14   there are enormous differences among the circuits.


 15   The same differences show up when you look at the


 16   total percentage of unpublished opinions by a


 17   circuit.  And here, of course, we're using


 18   unpublished in the specialized way we're talking


 19   about it.


 20             In 2003 the Fourth Circuit had the highest


 21   percentage at 91 percent.  The lowest percentage


 22   was the First Circuit at 39 percent, a difference




  1   exceeding 100 percent.  So the instinctive reaction


  2   of somebody who practices in the First Circuit


  3   might be, "What's the big deal?"  The pool of


  4   precedential published opinions in that circuit is


  5   vastly larger than the pool.


  6             So I think in answer to the question that


  7   Judge Alito posed to Judge Bright, what's the


  8   difference among the circuits, I think part of it


  9   is that underlying practice of how much is out


 10   there to be looked at may be linked--in fact, I'm


 11   certain it is linked in some ways to that circuit's


 12   rule about the use of noncitable dispositions.


 13             The Seventh and the D.C. Circuit, as it


 14   happens, were the same on this.  We each had 57


 15   percent of our opinions unpublished--quote-unquote.


 16   The Eleventh and the Fifth Circuits were up at the


 17   87 percent level.  These are big differences.


 18             So while on the one hand the Seventh


 19   Circuit has one of the more restrictive rules


 20   regarding citation, on the other hand, a far


 21   smaller percentage of our docket is being put in


 22   the order category and thus noncitable.  Even




  1   though we're a small circuit and I'm sure one can


  2   speculate about why this is true, in absolute


  3   numbers we had the third largest number of written,


  4   signed and published opinions int  country.  The


  5   Ninth Circuit had 777.  Not surprising that they


  6   would have the most.  The Eighth Circuit had 648


  7   and we had 581.  No one else exceeded 500 in the


  8   statistical year ending September 30, 2003.


  9             So I think you need to look at the full


 10   picture in each circuit.  In other words, you can't


 11   just sort of pluck out the published opinion rule


 12   and say let's do something with that without


 13   realizing that it's a function itself of the


 14   circuit's practices and cultures on oral argument,


 15   on publication, on other matters that lead into


 16   this.


 17             My point, I stress, is not that I think


 18   there's any magic percentage of publication for any


 19   circuit.  I think it's up to each circuit to decide


 20   what it wants to do. I'm very happy in our circuit


 21   that we do give oral argument in every case where


 22   there's a lawyer on both sides.  I think that's a




  1   useful practice.  And in cases where there is no


  2   lawyer if one judge thinks that the case deserves


  3   fuller treatment, we importune or appoint or in any


  4   other way, hijack a lawyer into representing the


  5   party.  Sometimes it hash to be an amicus.


  6             So let me suggest a different strategy


  7   that might address the rare situation where a panel


  8   has erred in designating something for


  9   noncitability.  Most circuits--maybe not every


 10   circuit, but I found similar rules in most


 11   circuits--have rules that address that problem,


 12   rules that allow someone to change the designation


 13   of a particular order from unpublished and


 14   uncitable to published.  In the Seventh Circuit,


 15   which has an extremely liberal rule, local rule


 16   53(d)(3) provides that any person may request by


 17   motion that a decision by unpublished order be


 18   issued as a published opinion.  The First Circuit


 19   local rule 36 is similar, although it refers to any


 20   party or other interested person, so it's a little


 21   more restrictive than ours and it does specify that


 22   good cause must be shown.  The Fourth Circuit has




  1   an even stricter rule, giving the right to make


  2   such a motion to counsel, and the Fifth Circuit


  3   allows any judge of the court or any party to make


  4   such a request.


  5             My suggestion is that if there's serious


  6   concern that the occasional noncitable order was


  7   misclassified as something that merely applies


  8   existing law and instead it really does advance the


  9   law somehow, then maybe we ought to look at this


 10   error correction device that's a much more targeted


 11   device.  I can't even remember sitting on panels of


 12   the Seventh Circuit when we have denied such a


 13   motion.  We grant them with extraordinary


 14   liberality.


 15             Now I'm sure if CNN came in and said we're


 16   hereby filing a motion to publish everything, we


 17   wouldn't--I mean that's not the point of this rule.


 18   That would take us right back to proposed Rule


 19   32.1.  But that's not how it happens and if a


 20   lawyer who is preparing a brief in a case runs


 21   across an unpublished disposition that seems to


 22   fall in this category, they can make a motion.  You




  1   don't have to be linked to the case.  You don't


  2   have to be anything.  You can just be a concerned


  3   citizen.


  4             Maybe you're a person who practices a lot


  5   in the Social Security area.  That was one such


  6   case I remember, where we thought we had done


  7   something extremely routine, we issued it as an


  8   unpublished order.  We got a motion from somebody


  9   who I know has an active Social Security practice


 10   in Chicago, not a lawyer in the case, who said


 11   you've actually said something that nobody's really


 12   said before; would you please publish it?  We said


 13   sure.  We reissued it as a published opinion and


 14   now it's out there.


 15             So that, I think, is the better way to go


 16   if there is a concern that in this vast ocean of


 17   orders floating out there, most of which, as I


 18   said, are quite routine and not really worthy of


 19   citation, let's do that instead.  I think proposed


 20   Rule 32.1 goes the wrong way.  I urge the committee


 21   to abandon this route and leave things as they are


 22   for now.  Thank you.




  1             JUDGE ALITO:  Thank you, Judge Wood.


  2             Any questions?


  3             MR. LETTER:  I found your comments very


  4   thoughtful and you've obviously given this a lot of


  5   consideration and, as I say, very thoughtful.  I


  6   had a couple of questions for you.


  7             From a practitioner perspective I had a


  8   situation not long ago in one of the circuits that


  9   doesn't allow citation of unpublished orders.  I


 10   found about four or five unpublished orders


 11   dismissing a particular kind of interlocutory


 12   appeal.  These orders were all issued within about


 13   a two-year period.  There were no published


 14   opinions on point, which is sort of not surprising.


 15   This was simply a procedural issue on an


 16   interlocutory appeal.


 17             As I was looking at that, were I a judge,


 18   I would very much want an attorney to be able to


 19   give me that information and tell me that by the


 20   way, in the last several years your same court has


 21   dismissed four or five of these.  Does that worry


 22   you?  Aren't you frustrated that you cannot get




  1   that kind of information from the attorneys?  Or is


  2   the answer your law clerks will find it and you


  3   don't need the attorneys, anyway?


  4             JUDGE WOOD:  Well actually, my answer is a


  5   third one, which is that certainly in the Seventh


  6   Circuit if you found those, all you'd have to do is


  7   file a motion to make the best one or a couple of


  8   them published and that would be a way of calling


  9   it to our attention.


 10             MR. LETTER:  Although I often find I


 11   discover these probably about a week before the


 12   brief was due.  I think that's probably very


 13   standard among attorneys.  You don't find these


 14   things six months in advance.


 15             JUDGE WOOD:  Right.  Maybe you practice in


 16   circuits where the bar doesn't use the opportunity


 17   to file supplemental authority requests as often as


 18   we see them.  I see them on the morning of oral


 19   argument not uncommonly, so I really question


 20   whether if you found it a week before you wouldn't


 21   have any way of getting it to our attention.


 22             We, in fact, in that kind of situation,




  1   even if we're doing an interlocutory order, if it's


  2   something like that--suppose we don't think


  3   mandamus is the right vehicle or something like


  4   that--we're as likely as not to publish that


  5   opinion.  That's the first thing we talk about--is


  6   this anything that's out there?  And if we've made


  7   a mistake, in our circuit you should call it to our


  8   attention and I think that would solve your problem


  9   altogether.


 10             The other thing is in terms of that, I


 11   think the judges probably do know what their


 12   practice is on interlocutory orders but if they


 13   don't, there are ways without opening Pandora's box


 14   to address the particular situation you're talking


 15   about.  Make a motion to publish.


 16             MR. LETTER:  The second is are you


 17   troubled by the fact that--and here I understand


 18   your practice--your meaning the Seventh Circuit's


 19   practice--may be different from the other three


 20   circuits that have similar rules--are you troubled


 21   by the fact that your unpublished decisions


 22   actually are citable and cited in almost every




  1   other federal court in the United States?  Most of


  2   the circuits and virtually every district court,


  3   your unpublished opinions can and are cited.  I see


  4   district court briefs all the time and they


  5   routinely cite unpublished court of appeals


  6   opinions.


  7             So, as I say, does it trouble you that


  8   your court is in this tiny, tiny minority when


  9   actually these opinions are widely cited and


 10   citable, perfectly proper within the rules?  Does


 11   that give you concern?


 12             JUDGE WOOD:  Well, I guess my reaction to


 13   that--actually, the approach we take to citation of


 14   other circuits' opinions in our court is to follow


 15   what that other circuit's rule is.  So if it's a


 16   circuit that has a very liberal citation rule,


 17   fine.  In a way it's like res judicata.  You know,


 18   you give the same weight that the issuing court is


 19   going to give to it, so we do the same thing with


 20   citation practices.


 21             Our responsibility is for the development


 22   of the law of the Seventh Circuit and if somebody




  1   else is off in some other place citing an


  2   unpublished order of ours, I just have to trust


  3   that the readers will give it what weight they wish


  4   to give it.  It's not the law of the circuit and it


  5   could be misleading.  That's not a good thing and


  6   that's what we're trying to signal by having


  7   emblazoned across the top of the page, "Not to be


  8   cited, unpublished order," but I don't have any


  9   power to tell the other circuits what they want to


 10   have or not.  So I regret that it's misleading but


 11   I can't really do anything about it.


 12             MR. LETTER:  And the last question is do


 13   you have concerns that, for instance, in this


 14   current term of the Supreme Court, there are at


 15   least five that I found and there may be more of


 16   the Supreme Court's docket are reviewing


 17   unpublished court of appeals decisions?  So these


 18   are decisions that in particular courts could not


 19   even be cited to those courts and yet they are the


 20   subject of Supreme Court review.  And, in fact, one


 21   of them, I think, took up 50 pages in the printed


 22   appendix that was filed with the cert petition.




  1             So the Supreme Court has at least five and


  2   maybe more of those this term.  I was wondering


  3   does that trouble you at all?


  4             JUDGE WOOD:  You're talking about


  5   something very near and dear to my experience.  I


  6   don't know if you remember a few terms ago the Kilo


  7   case having to do with whether thermal imaging is a


  8   search, but that was a petition for cert granted


  9   from an unpublished order of the Seventh Circuit,


 10   on which I happened to be on the panel.


 11             Now why did we decide that--in fact, they


 12   reversed.  The reason our order was unpublished was


 13   because we had had exactly the same issue in the


 14   Seventh Circuit not two years before; we had issued


 15   a fully reasoned published opinion saying that we


 16   thought that thermal imaging was not a search.


 17   That opinion is cited throughout the unpublished


 18   order.  In fact, the only thing the unpublished


 19   order really says is, "Here are the facts.  We


 20   think this is squarely governed by this earlier


 21   case," because nobody on the en banc court wanted


 22   to hear the earlier case back when it was issued. 




  1   It was the law of the circuit and we were bound to


  2   it.


  3             So the Supreme Court, for whatever


  4   reason--as we know, they have many reasons for


  5   taking cases or not taking cases at the time


  6   petitions for cert are presented--the Supreme Court


  7   didn't take the earlier case.  So anyone who wanted


  8   to know the position of our circuit had only to


  9   read the unpublished order, see what was the


 10   published precedential opinion on which it relied,


 11   and they were fully aware of what it was.


 12             The Supreme Court chose to take the later


 13   case.  They reversed.  They said no, actually


 14   thermal imaging is a search, it's not just


 15   something that's out there.  And it didn't bother


 16   me at all, to tell you the truth, because in


 17   keeping with my obligation to follow the law of the


 18   circuit, to have to keep publishing the same thing


 19   over and over again when it's really just governed


 20   by this thing is crazy.


 21             MR. LETTER:  I'm not talking about


 22   publishing.  The question is citation.




  1             JUDGE WOOD:  But I don't buy that there's


  2   a difference.  I think citability and precedential


  3   value are inseparably linked.  And, as I said, in


  4   the Seventh Circuit for certainly as long as I've


  5   been on the court there has never been any such


  6   thing as an actual unpublished opinion.  We've


  7   never had a situation where somebody had to march


  8   into the clerk's office and pick up a copy of it.


  9   We've had a very active website for a very long


 10   time, so it was all available, a least for people


 11   with computers it was available, and Westlaw has


 12   picked them up--I can't even remember, but


 13   certainly for a very long time.


 14             MR. LETTER:  Thank you.


 15             MR. LEVY:  Let me follow up briefly, if I


 16   might, on Doug's first set of questions.  Do I


 17   understand correctly that motions to publish a


 18   previously unpublished decision can be made years


 19   after the issuance of the opinion?  And about how


 20   long would it take the court to act on such a


 21   motion?


 22             JUDGE WOOD:  I think there's no time




  1   limit.  I'm trying to think what the times have


  2   been when I've been faced with those things and


  3   certainly I can remember a year in one case.  It's


  4   not like within the time for a petition for cert or


  5   any such thing.  I suppose at some point it's not


  6   really very interesting anymore because the court's


  7   probably moved on in whatever the area is but


  8   there's no specific time limit on it.  We generally


  9   act on it pretty quickly.


 10             When I get a motion like that obviously it


 11   goes to the panel but the authoring judge will have


 12   the leading oar on that.  I'll consult my panel.


 13   I'll go back and take a look at it because if I'm


 14   going to turn it into a published opinion, I want


 15   to make sure it's right.  You know, I go through


 16   that extra process that Judge Bright was talking


 17   about just to make sure that I haven't


 18   inadvertently misstated the McDonnell-Douglas test


 19   or done something silly, you know, that I shouldn't


 20   have done.


 21             So I don't think there is.  I've never


 22   seen one that was like five years late but I think




  1   within a fairly reasonable range there's no time


  2   limit.


  3             JUDGE ROBERTS:  First of all, Judge Wood,


  4   thank you very much for coming and visiting with us


  5   and I want to second your point that judges are not


  6   lazy and underworked.  I think there's no dispute


  7   about that.


  8             JUDGE WOOD:  None of at the table, right?


  9             JUDGE ROBERTS:  But I want to focus a


 10   little bit on a tension that I see in the arguments


 11   against the proposed rule that on the one hand,


 12   these--I don't really know what to call them--the


 13   unpublished, the noncitable, whatever, opinions are


 14   not worth very much; they just sort of apply


 15   existing law to the specific parties.  And then the


 16   other argument that well, if you allow the citation


 17   of them, lawyers are going to have this extra


 18   burden of going and looking at them and judges are


 19   going to have to look at them.


 20             Traditionally I think in our adversary


 21   system we allow disputes about the value of citable


 22   materials to be resolved by the lawyers in the




  1   exercise of their professional judgment in the


  2   interest of their client and let the judges decide


  3   whether we think that's worth anything, whether


  4   it's an opinion from another circuit, a district


  5   court opinion, a student comment in a law review.


  6   And a lot of the arguments seem to focus on the


  7   quality, the merit, the worth of the noncitable


  8   precedents but not so much on the solution of not


  9   allowing them to be cited and I wondered if you


 10   could address why that is the best solution, as


 11   opposed to, for example, many of the circuits have


 12   discouraging language saying you should realize we


 13   don't take these very seriously.


 14             You know, my experience over the last 10


 15   months, I think I've seen non--whatever we call


 16   them--nonprecedential memoranda, whatever, probably


 17   twice.  Two different times I've seen that cited,


 18   even though it's freely citable in our circuit,


 19   because the lawyers know the judges aren't terribly


 20   impressed by it.


 21             On the other hand, as a lawyer I've had


 22   situations where that is the exact case.  It's a




  1   year ago.  Maybe two of the judges are on the same


  2   panel.  However basic the proposition, in my


  3   professional judgment this is what I want that


  4   court to know on my client's behalf and I found it


  5   frustrating to have a rule saying you can't do


  6   that.


  7             So it's a long wind-up but focus on the


  8   problem that the rule's addressed to, which is the


  9   noncitability, even agreeing whatever you want to


 10   postulate as to how valuable or invaluable all of


 11   that body of law is.


 12             JUDGE WOOD:  Well, I have a couple of


 13   reactions.  I don't want to sit here and say that


 14   there's absolutely no wheat among this chaff


 15   because there probably is and, as I said, I think


 16   that our device for catching it is one that works


 17   pretty well.  There is a sorting process for the


 18   lawyers to find that one case, wading through all


 19   of those on the whole, as I said, to be quite


 20   honest, incredibly boring unpublished noncitable


 21   orders that we issue--boring only in the sense that


 22   they're so repetitive after a while, not, of




  1   course, to the parties whose case it is.


  2             So I worry from the point of view of the


  3   lawyer who is trying to persuade the court to do


  4   something feeling an ethical obligation to conduct


  5   that sorting process.  Lawyers, as you know, as


  6   Judge Bright said, are of vastly different


  7   abilities and some lawyers are not going to be as


  8   discriminating as you would be, I am confident.  We


  9   read briefs like this all the time.


 10             In fact, sometimes that factual match is


 11   so misleading.  You know, it's not really the legal


 12   principle that's at issue in the case.  Maybe the


 13   case is in a different posture.  Maybe it's a


 14   somewhat different set of problems that are before


 15   us.


 16             And I think what we're touching on is


 17   actually a very delicate area for the federal


 18   judiciary, which is the fact that in a case--for


 19   courts like the intermediate courts of appeals in


 20   the federal judiciary, just as for most state


 21   intermediate courts of appeals, we perform two


 22   functions.  We're usually performing the function




  1   in our compulsory jurisdiction of error review


  2   where we're looking at a particular case to make


  3   sure the district judge got it right.  District


  4   judges usually do get it right, number one.


  5             And number two, when we're doing that


  6   there's real law out there.  We all apply it the


  7   same.  I tell people you can pick any random panel


  8   you want of the Seventh Circuit and we will agree


  9   on 90 percent of the cases.  It's just that clear.


 10             So that's our error correction function


 11   and I think there's a pretty close correlation


 12   between the things that wind up as these noncitable


 13   orders and at least a subset of the cases that are


 14   applying that.  Somebody said how many times do you


 15   need to read the proposition that when a criminal


 16   defendant calls up a witness and threatens him


 17   before the trial, that an obstruction of justice


 18   enhancement is appropriate under the sentencing


 19   guidelines?  We know that.  This is not a


 20   proposition that is subject to serious debate.  And


 21   lots of appeals, given the draconian sentences that


 22   people get, are of that nature.




  1             Or did the district court clearly err when


  2   the court decided not to give an acceptance of


  3   responsibility adjustment?  It's a pretty


  4   straightforward thing.


  5             So again yes, there's a little bit of


  6   wheat.  How do we find it?  How do we solve this


  7   problem?  If you really feel that to represent your


  8   client properly you need to call that to the


  9   court's attention I think jettisoning the ability


 10   of courts to separate out that second group of


 11   cases, the group of cases for the real development


 12   of the law, is a vastly over-inclusive solution to


 13   the problem.


 14             JUDGE ALITO:  I wondered if I could get


 15   your reaction to a comment that was made by one of


 16   your colleagues who submitted a comment in support


 17   of the proposed rule, and that is that this is


 18   basically an empirical question.  Even given the


 19   variations in the circuits that you pointed out,


 20   would it not still be possible to do a systematic


 21   study of the effect of no-citation rules or the


 22   absence of no-citation rules in the various




  1   circuits?


  2             And if it would be possible to do such a


  3   study and if such a study were to show that the


  4   adverse consequences that have been predicted have


  5   not materialized in the circuits that permit


  6   citation, do you think that you and your colleagues


  7   who have written in opposition to this proposed


  8   rule would feel that that merited reconsideration


  9   of their position?


 10             JUDGE WOOD:  Well, I'm certainly familiar


 11   with the colleague in the letter to which you refer


 12   and in a world of unlimited resources, how could I


 13   be opposed to one more empirical study?  I think a


 14   study would have to be constructed very carefully


 15   to adjust for the differences I was talking about


 16   because if the circuit, in fact, just to use rough


 17   numbers, has as fully precedential published


 18   opinions fully half of its output, it's doing


 19   something different than a circuit that has only 20


 20   percent of its output that way.  And I think some


 21   very sophisticated techniques would need to be


 22   brought to bear to make sure that one was not, in




  1   fact--you know, if you ask the wrong question


  2   you'll get the wrong answer and that's a risk that


  3   I think is a serious one in such a study.


  4             Now having said that, I think that I also


  5   want to throw into the hopper the fact that the


  6   states have vast experience with this, as well.


  7   Most of the states--I think it's still a numerical


  8   majority of the states have restrictions on


  9   publication of opinions of their intermediate


 10   appellate courts.  I know I checked in our circuit


 11   and all three of the states in our circuit do.


 12   They each have particular criteria for their


 13   intermediate appellate courts to publish opinions.


 14   Some states may have no restrictions whatsoever and


 15   if you're thinking of a study, maybe that's


 16   actually a better way to control for these


 17   differences than looking at the various Courts of


 18   Appeals would be.  I'm not sure.


 19             I doubt actually in the final analysis


 20   that if I were to be told that a complete free


 21   market for citability was out there I would still


 22   think it was worth having a fourfold increase in




  1   the number of potentially citable things out there


  2   on a nationwide basis but, as I said, I think it


  3   really depends.  It's a resource question and it's


  4   also a question of whether this is the most burning


  5   problem on your docket or whether there are other


  6   things that you might wish to put those resources


  7   to.  But any such study would have to be very


  8   carefully constructed.


  9             JUDGE STEWART:  Just as a follow-up,


 10   doesn't your answer suggest, though, that--I mean


 11   assuming the study's done and it unquestionably


 12   shows a lot of these workload burden notions that


 13   have been put out here don't prove out, that the


 14   opposition to the rule still really boils down to


 15   sort of the way you've characterized it, as


 16   citability and precedential are linked?  I think


 17   that's an interesting term of art and in reading


 18   all the comments, I don't see that as a predominant


 19   viewpoint but that's another issue.


 20             Isn't it really more the self-governance


 21   notion?  In other words, saying if a ton of


 22   evidence from the study came to show that all these




  1   workload notions just don't prove out, don't you


  2   allow for the fact that you and perhaps your


  3   circuit would be opposed to the rule simply because


  4   it cuts into the self-governance and this merging


  5   of citability?  Because you cite in support of the


  6   position you take about potentially increasing the


  7   Supreme Court's cert docket and intracircuit--I


  8   mean with all due respect, I don't see how that's


  9   quantified or there's any data to really back that


 10   up.


 11             So I mean at bottom, isn't there really


 12   sort of a philosophical disagreement with this rule


 13   based on the premise of citability and precedential


 14   merged together and kind of a notion of


 15   self-governance?


 16             JUDGE WOOD:  Well, I certainly think that


 17   I and my colleagues do think that a certain amount


 18   of self-governance in each circuit is appropriate


 19   since the circuits are, in fact, so different and


 20   there are so many things--just to give you an


 21   example, the Seventh Circuit never sits a week at a


 22   time.  We have a different panel every day.  I sit




  1   every week of every month.  We're very


  2   geographically compact.  Somebody hops on the train


  3   in South Bend or Milwaukee, travels 90 miles and


  4   they're in Chicago.  That doesn't look at all like


  5   the Ninth Circuit.


  6             The reason, actually just for the record,


  7   that I said what I did about intracircuit


  8   conflicts, I actually do think we have a certain


  9   empirical base for because the larger circuit, such


 10   as the Ninth Circuit with a vastly greater number


 11   of dispositions of any type each year, do have the


 12   risk of more intracircuit conflicts.


 13             We all try, of course, to avoid those but


 14   when there are that many more cases out there, are


 15   you really going to remember every last thing,


 16   every last nuance of every panel?  I think it's


 17   humanly very difficult to do.


 18             So my sense is just if you quadruple or


 19   quintuple the number of dispositions out there this


 20   is, in fact, a serious risk, both within circuits


 21   and for the country as a whole.


 22             So it does partly get down to what you




  1   think we're doing, whether you think we're


  2   focussing on self-governance and the like, and how


  3   we want to develop the law.  We're responsible for


  4   the development of the law at the circuit level


  5   until the Supreme Court tells us we're wrong, of


  6   course, and if we think that focussing on the


  7   opinions that receive that full process that Judge


  8   Bright was talking about are the ones where we want


  9   to develop it, then maybe we should do that.  I


 10   think that's certainly been my position.


 11             One thing I didn't stress in my oral


 12   remarks but certainly was in the letter that the


 13   rest of us on the Seventh Circuit submitted to this


 14   committee is the fact that in our circuit the


 15   process that yields a published precedential


 16   opinion is considerably more elaborate than the


 17   process that yields an unpublished noncitable


 18   order.  A published opinion is almost invariably


 19   the result of oral argument and everything that


 20   that entails--you know, public discussion with the


 21   lawyers, an opportunity to explore whatever the


 22   issues may be, the ability to deliberate with one's




  1   colleagues--whereas our unpublished orders are


  2   those where we decide in conference, obviously


  3   still panels of three judges, with the assistance


  4   of the staff attorneys.  I don't want to be here


  5   saying that I think our staff attorneys do a bad


  6   job because I don't think so.  Actually I think


  7   they do an excellent job and we're responsible,


  8   anyway.  I don't want to be in a position of saying


  9   that here's this second-class work product.  But it


 10   is not as elaborate a procedure.  It's a devil's


 11   deal that we've all made for the last 30 years


 12   because of the incredible workload.


 13             If you don't get oral argument--we


 14   probably have all had the experience in oral


 15   argument that somebody every so often says


 16   something that you really didn't realize was in the


 17   case, that makes you understand that the issue is a


 18   narrower issue or a broader issue or the facts were


 19   not really adequately portrayed in the person's


 20   brief, and we pick up all that in our published


 21   opinions and we don't necessarily--obviously


 22   there's some risk of errors in these pro se




  1   rambling, disjointed things that are presented to


  2   us and we make the best of it that we can and come


  3   out with an unpublished order.  So they really do


  4   strike me as two different kinds of things, in the


  5   end.


  6             JUDGE ALITO:  Any other questions?


  7             Judge Wood, thank you very much.  We


  8   appreciate your coming very much.


  9             JUDGE WOOD:  Thank you.


 10             JUDGE ALITO:  Richard Frankel.


 11             We're running quite a bit late and I would


 12   appreciate it if the witnesses would try to keep


 13   their prepared remarks to about 10 minutes, to no


 14   more than 10 minutes, so that we have ample time to


 15   follow up with questions from the members of the


 16   committee.


 17             Mr. Frankel, thank you for coming.


 18             MR. FRANKEL:  My remarks run a little bit


 19   longer so feel free to tell me to stop.


 20             JUDGE ALITO:  Okay.


 21                   STATEMENT OF RICHARD FRANKEL


 22             MR. FRANKEL:  My name is Richard Frankel




  1   and I'm here on behalf of Trial Lawyers for Public


  2   Justice and my testimony relates to proposed


  3   Federal Rule of Appellate Procedure 32.1 concerning


  4   the citation of unpublished opinions.


  5             Generally speaking we wholeheartedly


  6   endorse the committee's proposed rule for many of


  7   the same reasons stated in the Advisory Committee


  8   note accompanying the proposed rule and we believe


  9   that the committee should approve it.  At the same


 10   time however, we believe that the proposed rule


 11   does not go far enough and we would urge the


 12   committee to consider issuing a new proposed rule,


 13   one that would require all appellate decisions to


 14   be given the weight of binding precedent.


 15             And in support of that position, I wish to


 16   stress three points this morning:  one, that


 17   allowing courts to issue unpublished decisions


 18   which do not make law is contrary to our rule-based


 19   system of lawmaking; two, issuing decisions that do


 20   not make law creates both the perception and


 21   unfortunately the reality that courts issue


 22   nonrule-based and inconsistent decisions; and




  1   three, the fact that requiring all decisions to be


  2   given the weight of binding precedent will increase


  3   judicial workload cannot justify an approach that


  4   violates the basic principles of the American


  5   judicial system.


  6             Our first point is that unpublished


  7   opinions are contrary to rule-based decisionmaking.


  8   Our legal system is predicated on the idea that


  9   society should be governed by the rule of law and


 10   not the rule of men and women.  Courts preserve the


 11   rule of law by issuing decisions that both apply


 12   the law and create law.


 13             As the Honorable Judge Wood just recently


 14   stated very succinctly, our courts are public


 15   courts and they exist not merely to arbitrate


 16   dispute or just to decide cases.  However, when


 17   courts issue unpublished or nonprecedential


 18   decisions, they undermine both of those facets of


 19   the rule of law system because they neither


 20   articulate a lasting principle of law through their


 21   decisions; nor do they require future courts to


 22   apply the law that was used in their previous




  1   unpublished decisions.  Without a system that binds


  2   future courts to follow its own past decisions,


  3   nothing ensures that courts will act according to


  4   principle rather than personal opinion.


  5             This, in turn, erodes another basic


  6   principle of our judicial system, the notion of


  7   fundamental fairness, that like litigants should be


  8   treated alike.   Every litigant who walks into


  9   court should be able to have the expectation that


 10   he or she will be treated no differently than any


 11   other litigant.  However, when courts can issue


 12   unpublished decisions in which they can decide an


 13   issue one way one day and another way the next day,


 14   not only are courts telling those litigants that


 15   they are not entitled to have that expectation but


 16   additionally, that it is perfectly reasonable and


 17   proper for courts to actually treat those litigants


 18   differently even though they face almost identical


 19   situations.


 20             We believe the only way to truly preserve


 21   a rule of law system is to require that all


 22   appellate decisions actually be given the force of




  1   law, both present and future, by giving them


  2   binding precedential weight.


  3             Our second major point is that the


  4   practice of issuing unpublished decisions creates


  5   both the perception and sadly, the reality of a


  6   two-tiered system of justice in which courts are


  7   not engaging in rule-based decisionmaking.


  8             First in terms of perception, whether or


  9   not it is actually true, unpublished decisions send


 10   a message that courts are engaging in


 11   results-oriented decisionmaking.  When a court


 12   announces a result in a case but says that the


 13   principle underlying that result in the case need


 14   not be followed, it sends the message that courts


 15   are more interested in getting the result that they


 16   want than in the principle underlying that result.


 17             Whereas with published opinions the court


 18   shows faithful adherence to the rule of law by


 19   starting out by identifying an appropriate legal


 20   principle and then applying that principle to see


 21   which result follows, with unpublished opinions it


 22   appears that the court starts out with the result




  1   and then expressly disclaims the lasting value of


  2   any reasoning used to reach it.  As a result, the


  3   system creates two different levels of justice


  4   being administered, one for published decisions and


  5   another for unpublished decisions.


  6             And this perception of results-oriented


  7   decisionmaking is, in fact, reinforced by many of


  8   the statements that judges have themselves made in


  9   their comments to this committee in which they


 10   state that in many unpublished decisions the only


 11   thing that a panel will agree upon is the result in


 12   the case and not necessarily the reasoning used to


 13   reach it and moreover, that lawyers in lower courts


 14   would actually be affirmatively misled if they were


 15   to rely on reasoning that is while printed and


 16   stated in the decision, doesn't actually reflect


 17   the collective agreement of the panel.  This also


 18   exacerbates public perceptions that judges may be


 19   motivated more by results than they are by


 20   principle.


 21             Now in terms of reality, it's also true


 22   that unpublished decisions have resulted in a




  1   reality where inconsistent decisions result.  In


  2   our written comments we have highlighted a number


  3   of examples of inconsistent decisionmaking within a


  4   circuit on identical issues that have been caused


  5   by the use of unpublished decisions.  In one


  6   notable example, the case of United States versus


  7   Rivera-Sanchez, which was a published decision of


  8   the Ninth Circuit, that panel noted 20 previous


  9   unpublished decisions all addressing the same issue


 10   but resolving that issue in three different ways.


 11             This shows that this problem actually is


 12   real and occurring within circuits and it's not


 13   something that should be dismissed as merely


 14   abstract or theoretical and we believe that the


 15   only way that this problem truly can be rectified


 16   is to make all decisions binding and precedential.


 17             Our third and final point is that the fact


 18   that judicial workload will increase as a result of


 19   making all decisions binding and precedential


 20   cannot justify a radical departure from a


 21   rule-based legal system.


 22             Now of course, as almost all commenters




  1   have conceded, it's inevitable, given that judges


  2   spend more time on published opinions than they do


  3   on unpublished ones, if you require publication of


  4   all decisions as precedent, judicial workload is


  5   going to increase.  And under our proposed rule,


  6   judges are going to face very difficult choices


  7   about how to allocate their time.  They may either


  8   decide to issue more summary one-line or even


  9   one-word dispositions or to spend less time on


 10   opinions that they currently designate as published


 11   and we recognize this is going to happen.  However,


 12   this framework is preferable to allowing the


 13   continued use of unpublished decisions, we think,


 14   for several reasons.


 15             The first is that as we have already


 16   expressed, mandatory publication as binding


 17   precedent is the only way to truly preserve notions


 18   of rule-based law-making and fundamental fairness


 19   and these principles represent the heart of the


 20   judicial function and should not at the drop of a


 21   hat, we think, be readily sacrificed at the alter


 22   of time savings for appellate judges.




  1             Second, it may be that the use of summary


  2   dispositions, while certainly not ideal, could be


  3   preferable to the use of unpublished opinions in


  4   many cases.  Given that judges have already stated


  5   that a lot of cases they agree on a result but they


  6   may not agree on the reasoning, it may not make


  7   sense to issue an unpublished decision that


  8   contains reasoning that does not reflect the


  9   opinion of the panel but to also issue a result


 10   that they do agree upon but that is not binding.


 11   It may make more sense to make that result binding


 12   but then to exclude the reasoning that creates the


 13   possibility of lawyers and lower court judges being


 14   misled.


 15             Third, while judicial workload, we admit,


 16   will increase, we believe that the amount that it


 17   will increase or the concerns that have been


 18   addressed by critics of this rule are somewhat


 19   exaggerated and we have several reasons why we


 20   think this is so.


 21             The first, as the committee is well aware,


 22   nine of 13 federal circuits already permit citation




  1   of unpublished opinions in some form for their


  2   persuasive value.  And while there may not be a lot


  3   of data already out there, there's no indication


  4   that the opinions in those circuits have fallen in


  5   quality as judges devote more time to their


  6   unpublished decisions or that lawyers and lower


  7   court judges are being misled by erroneously


  8   relying on unpublished decisions.


  9             Second, while certainly not exclusively,


 10   an overwhelming number of commenters who have


 11   expressed this workload concern are lawyers and


 12   judges that practice within the jurisdiction of the


 13   Ninth  Circuit, which suggests that while it may


 14   not be a problem unique to the Ninth Circuit,


 15   perhaps it's a problem certainly much more


 16   pronounced in the Ninth Circuit.  And this is not


 17   to say that it is not a real problem but a problem


 18   of limited geographical scope certainly should not


 19   be the driving force behind national policy-making


 20   and should not be a reason to reject either the


 21   proposed rule or the idea of making all decisions


 22   binding and precedential.




  1             Third, the available statistics that are


  2   out there do not support the contention that


  3   judicial workload will radically increase.  One


  4   study by Dean Robel of Indiana University Law


  5   School shows no correlation between a circuit's


  6   per-judge workload and the percentage of opinions


  7   that that circuit chooses to publish.


  8             There was another study cited in Law and


  9   Contemporary Problems in 1998 which shows a wide


 10   disparity in the number of opinions published by


 11   individual judges.  It studied a two-year span and


 12   showed that within that span a number of active


 13   judges published as many as 120 opinions while


 14   other judges, also active judges, published as few


 15   as 20, which suggests that it's possible that there


 16   may be ample room for judges to significantly


 17   increase the number of opinions that they publish


 18   without detracting from the quality of judicial


 19   decisionmaking.


 20             And finally, while it's true that judicial


 21   workload will increase in the short run, we think


 22   there's a possibility that requiring all decisions




  1   to be binding and precedential could actually


  2   reduce judicial workload and the workload of


  3   lawyers in the long run by stopping repetitive


  4   litigation, by establishing a firm rule of


  5   precedent and filling in ambiguities in existing


  6   precedent so that you don't have a case like United


  7   States versus Rivera-Sanchez that must be decided


  8   21 times rather than a single time, and also by


  9   providing greater guidance to lower court judges


 10   and to lawyers about what the state of the law is


 11   so that they have a better idea of whether appeals


 12   can and should be filed, and this could ultimately


 13   reduce the number of appeals that ultimately will


 14   be filed.


 15             Our final conclusion would be that as many


 16   commenters have stated this morning and in their


 17   comments, both for and against the rule, they seem


 18   to acknowledge that unpublished opinions are a bit


 19   of an unfortunate practice in that in an ideal


 20   world every judicial opinion would give the time


 21   and attention that it deserves and whatever path


 22   the committee decides to take with respect to




  1   unpublished opinions, we think it makes little


  2   sense to acknowledge the lamentability of the


  3   practice of issuing unpublished opinions and then


  4   to adopt a rule structure that both enshrines and


  5   perpetuates that practice.  If they truly are


  6   flawed and imperfect, then they should not be


  7   condoned but they should be eliminated.


  8             JUDGE ALITO:  Thank you, Mr. Frankel.


  9             Any questions?


 10             MR. LETTER:  I just had one question for


 11   you.  The statute that sets up this process, 20 USC


 12   I think it's 207.1, says specifically that the


 13   Supreme Court can promulgate rules of practice and


 14   procedure but those rules cannot affect substantive


 15   rights.


 16             The proposal that you're making, at least


 17   to me, raises the question that we would be


 18   recommending and the Supreme Court would be


 19   adopting a rule that is not practice and procedure


 20   but would be substantive.  It would be telling the


 21   courts, setting a rule for them that certain


 22   opinions bear precedential weight, meaning have




  1   substance, and isn't that beyond the statutory


  2   power of the Supreme Court and therefore this


  3   committee?


  4             MR. FRANKEL:  Well, I would say that to


  5   the extent that it would be, I would think that the


  6   rule that allows courts to establish their own


  7   rules regarding unpublished opinions would do the


  8   same thing by allowing courts to deprive--


  9             MR. LETTER:  But that rule just says what


 10   you can cite in your brief.  It doesn't say


 11   anything about whether that opinion is or is not to


 12   govern the substantive rule of law in the case.


 13             MR. FRANKEL:  Well, I understood, at least


 14   from reading Professor Schiltz's summary of the


 15   comments, and I may have misunderstood it or


 16   misinterpreted it, that originally there was some


 17   rule passed in the early '60s or the 1970s that


 18   allowed this practice of unpublished opinions.


 19   Before there was a practice of issuing unpublished


 20   opinions all decisions were published and given


 21   precedential weight and there was some shift that


 22   allowed the use of unpublished opinions in a way




  1   that therefore allowed courts to deprive those


  2   decisions of having any precedential weight.


  3             MR. LETTER:  I may be wrong but I think


  4   those were decisions or rules by the courts


  5   themselves, either in opinions or in their own


  6   rules, which may or may not be valid.  But again


  7   this committee and the Supreme Court are bound by


  8   the statute, which says we cannot set


  9   substantive--we cannot affect substantive rights.


 10             MR. FRANKEL:  I don't know whether that


 11   rule would be substantive or procedural in the


 12   sense that you're not--you're only saying what


 13   decisions should be given the force of law but


 14   you're not saying what that law would be and I


 15   don't know whether that would be classified as


 16   substantive or procedural.


 17             JUDGE ALITO:  Do you really think that


 18   court of appeals judges could write 100 or 150


 19   opinions a year, precedential opinions a year,


 20   without experiencing an enormous decrease in the


 21   quality of the opinions?


 22             MR. FRANKEL:  I mean I obviously don't




  1   have the experience of being a federal judge, so


  2   certainly I would show some deference to the


  3   opinions of judges who have expressed that some


  4   degree in quality would occur.


  5             Judicial workload increases all the time


  6   and judges seem to find ways to continue to fulfill


  7   their judicial duties without sacrificing quality.


  8   I mean the number of appeals, even though more and


  9   more are being issued as unpublished opinions,


 10   increases every year and this increases a judge's


 11   workload and I think that like I said, they may


 12   have to find ways of reallocating their time


 13   between published--between how they allocate time


 14   on opinions.


 15             It may be that some opinions can be issued


 16   without spending as much time that is currently


 17   spent on them.  They could be written in more


 18   narrow ways.  It could be that summary dispositions


 19   could be used in certain cases, as I mentioned in


 20   my comments.


 21             I think there's no question that a


 22   judicial workload is going to increase but judicial




  1   workload always increases and that doesn't mean


  2   that we always take steps that deny litigants their


  3   opportunities to have fundamental fairness


  4   protected, so I think there are ways that judges


  5   can do it.


  6             MR. SVETCOV:  I'm from San Francisco.  I


  7   practice in the Ninth Circuit.  So now you want me


  8   to read not only the 777 published opinions in my


  9   circuit but the other 4,800 that are not published,


 10   even though once a panel in my circuit in a


 11   published opinion sets the law of the circuit, that


 12   is the law of the circuit and everything else is


 13   merely an application of that principle to various


 14   sets of facts, many of which are very much like the


 15   one in the first panel opinion?


 16             Why are you asking me to digest 5,000


 17   extra opinions each year in my practice?  I mean


 18   you're forgiving the judges.  They could write


 19   summary--you say they can write summary judgments.


 20   Why do I have to learn that much more law?  What is


 21   it about uniformity that makes that a worthwhile


 22   principle for me, practicing in the Ninth Circuit?




  1             MR. FRANKEL:  Well, I would answer that


  2   question in several ways.  The first is that


  3   available studies that I've seen, particularly the


  4   one conducted by Dean Robel, shows that most


  5   lawyers practicing within circuits, including the


  6   Ninth Circuit, already regularly read, rely and


  7   cite to unpublished decisions.


  8             Secondly--


  9             MR. SVETCOV:  Trust me; I never do.


 10             MR. FRANKEL:  Then I guess there are


 11   exceptions to every rule.


 12             Secondly, many times unpublished cases are


 13   cited because there are holes in existing precedent


 14   and if you made those decisions precedential,


 15   instead of when you now do research and you


 16   initially find the case most on point is an


 17   unpublished case but you have to continue doing


 18   research because that case cannot be cited, if that


 19   was the first case that you found, this would


 20   substantially save your research time.


 21             MR. SVETCOV:  In my circuit we can find


 22   cases on both sides that are already published.




  1             MR. FRANKEL:  Well, if they're already


  2   published, truly if the cases are truly repetitive


  3   and they're not going to add anything to your


  4   research time, then there's no need to continue to


  5   read them.  But to the extent that they do add


  6   persuasive reasoning that is not contained in


  7   current published opinions, then whether those


  8   opinions are citable or not, lawyers have a duty to


  9   find that reasoning and to use that reasoning,


 10   whether or not they cite the case in their


 11   arguments to the court and whether the case is


 12   ultimately citable or not or persuasive or


 13   precedential doesn't change that.


 14             MR. SVETCOV:  Why doesn't Judge Wood's


 15   proposal, which I think is true in many circuits,


 16   that a motion to publish would resolve that


 17   situation in those rare cases?


 18             MR. FRANKEL:  I would have two answers to


 19   that question.  One is that although, at least it


 20   seems in the Seventh Circuit and in many other


 21   circuits, any interested member of the public can


 22   move to publish a case, those who are going to be




  1   most aware of it are the lawyers in the case and


  2   you're leaving it up to the lawyers in those cases


  3   to decide whether or not they think that case


  4   merits publication.


  5             Second, if the case does not get


  6   published, then you still have the risk of


  7   inconsistent results occurring and the risk that


  8   litigants who walk into court will not be treated


  9   equally and in our mind that is the most important


 10   concern and the one that must be protected, whether


 11   or not a motion to publish is made.


 12             Third, it may be that you only want to


 13   publish--you find out that you want to publish a


 14   case--the case might be useful to you several years


 15   after the decision is published and I guess there


 16   are procedures to decide how to publish a case, but


 17   if the original author of the opinion perhaps is no


 18   longer on the court, it may be difficult for a


 19   court to decide whether they think that opinion


 20   merits publication or not.


 21             JUDGE ALITO:  Any other questions?


 22             Thank you, Mr. Frankel.  We appreciate




  1   your comments very much.


  2             Mr. Judah Best of Debevoise & Plimpton on


  3   behalf of the ABA Section of Litigation.


  4                     STATEMENT OF JUDAH BEST


  5             MR. BEST:  Good morning.  My name is Judah


  6   Best.  I wrote it down so that I couldn't forget


  7   it.  I'm of counsel to the law firm of Debevoise &


  8   Plimpton.  I'm a former chair of the Section of


  9   Litigation of the American Bar Association.


 10             Some of you know me in one of my other


 11   capacities.  I was chair of the Standing Committee


 12   on the Judiciary and prior to that I had been on


 13   the committee for a number of years.  I see at


 14   least one face that's familiar to me in that


 15   context.


 16             I'm also a Litigation Section delegate to


 17   the House of Delegates of the American Bar


 18   Association.  By the way, the Litigation Sectoin is


 19   composed of 70,000 trial lawyers.


 20             In the capacity as a member of the House


 21   of Delegates, in the summer of 2001 I presented to


 22   that house a resolution urging that the American




  1   Bar Association oppose the practice of various


  2   federal Courts of Appeals in prohibiting citation


  3   to or reliance upon their unpublished opinions as


  4   contrary to the best interest of the public,


  5   contrary to the best interest of the legal


  6   profession.  The resolution was passed by the House


  7   of Delegates and is the official policy of the


  8   American Bar Association.  A copy of the resolution


  9   and the accompanying report are attached to my


 10   testimony, which has been presented to this


 11   committee.


 12             Now in the interest of the committee's


 13   time, I will limit my remarks today to two topics.


 14   First, that all opinions, whether binding precedent


 15   or not, should be published, as provided by the


 16   Advisory Committee in proposed Rule 32.1.  Second,


 17   that the new rule should be uniform.  That is to


 18   say the rule should not allow for opt-outs but


 19   should govern all circuits.  I think it's sort of


 20   higgly-piggly, as I will explore later in my


 21   remarks, to see the differences in the circuits.


 22             Approximately 80 percent of the opinions




  1   published by circuit courts today are noncircuit


  2   binding.  In most circuits today the opinions are


  3   released to publication in the most widely used


  4   database services, Lexis and Westlaw.


  5   However--it's a big however--it was only recently


  6   that the First and Third Circuits began releasing


  7   their decisions and the Fifth and Eleventh Circuits


  8   still withhold them.  And, by the way, that is true


  9   of many state appellate courts, as well.


 10             One huge problem is the so-called


 11   institutional litigants, the ones who have the


 12   opinions--the United States Attorneys, the


 13   government agencies, insurance companies, and the


 14   like.  They're far more likely than others to have


 15   access to the unpublished opinions.  After all,


 16   they have a continuing, focussed interest and they


 17   set up a library of relevant decisions and I think


 18   that gives an unfair advantage to one side.


 19             I had personal experience with this.


 20   Several years ago I was engaged to counsel a


 21   defendant in a criminal appeal.  I went through the


 22   familiar process of reviewing the record, sorting




  1   out the issues, choosing those that seemed most


  2   promising and abandoning those that did not.  I


  3   found an important issue on which there was a split


  4   among the circuits and no published opinion in the


  5   circuit where the matter was situated.  I said


  6   published opinion, so that's the caveat.  I


  7   counseled that the issue was one of first


  8   impression in that circuit.


  9             To my chagrin, the United States Attorneys


 10   Office produced an unpublished opinion that was


 11   contrary to my stated position.  Actually they


 12   presented it in the circuit in which it was


 13   inappropriate to present it, but they did so.


 14   Frankly, I felt that I had been had.  The U.S.


 15   Attorneys Office simply had more access to the law


 16   than my client did and he and I were at an unfair


 17   disadvantage.


 18             And this is not an isolated instance.  I


 19   believe it happens constantly in jurisdictions


 20   where opinions are not published but are available


 21   and accessible to the institutional litigant.


 22             You have developed what I would call the




  1   homer situation.  Indeed, Professor Lauren Robel,


  2   an acknowledged authority in this area, has


  3   conducted survey research demonstrating that


  4   institutional litigants do, in fact, collect,


  5   catalogue and use unpublished opinions in ways not


  6   available to other litigants.  Professor Robel has


  7   also pointed out that institutional litigants have


  8   every incentive to, and I quote, "stack the


  9   precedential deck by moving for reporter


 10   publication (and therefore circuit-bindingness) of


 11   unpublished cases with outcomes that they favor,


 12   while allowing the unfavorable decisions to remain


 13   unpublished and occult."  And I cite her quotation


 14   in my prepared remarks.


 15             It's no answer to suggest that


 16   anti-citation rules can solve this sort of problem.


 17   I don't think they can.  As the chief judge of one


 18   circuit has put it, and I quote, "Commentators have


 19   argued that the no-citation rule may work to


 20   increase rather than decrease the unfairness to the


 21   uninitiated lawyer.  If the sophisticated attorney


 22   uses arguments or language drawn from the




  1   unreported case without citing it, his uninitiated


  2   opponent is unlikely to learn of its existence.  In


  3   sum, if unreported opinions are cited, the


  4   uninitiated lawyer can remedy his deficiency; if


  5   they cannot be cited, he may not even know a


  6   deficiency exists."


  7             Now there's another concern and that is


  8   that if none of the lawyers know about the occult


  9   opinion, the court or its law clerks will know


 10   about it.  Judges acknowledge that they read the


 11   unpublished opinions and it is impossible to


 12   believe they do not consider the reasoning of those


 13   opinions when faced with similar fact patterns or


 14   arguments, so I think you have to read those 4,000


 15   unpublished opinions because the judges are reading


 16   them.


 17             But the lawyer who cannot research the


 18   day-to-day rulings of the appellate bench in a


 19   particular area will be that much less prepared to


 20   counsel his or her clients.  Binding or not, the


 21   unpublished opinions are a pretty good indicator of


 22   what a judge thinks on a particular issue in a




  1   particular context and a faithful recordation of


  2   what she or he does in 80 percent of her cases.


  3             If one lawyer can get that information and


  4   the other cannot, that is not fair.  If the judge


  5   has that information and the lawyer does not, that


  6   is also not fair.


  7             Now there's a deeper problem that must


  8   also be dealt with.  Although the circuit rules may


  9   rationalize the nonbindingness of some opinions on


 10   the theory that they have nothing new to say, the


 11   inescapable fact discussed by William Hangley, who


 12   is sitting behind me and will be speaking soon, in


 13   a wonderful article published in Federal Rules


 14   Decisions, is that they often do break new legal


 15   ground.  The widely felt suspicion is that there


 16   are important decisions out there but they cannot


 17   be accessed.  Now that cannot be good for the law


 18   as an institution.  In fact, we believe it is


 19   destructive to law and is not respectful to law.


 20             Let's talk about uniformity for a minute.


 21   I am aware that the Advisory Committee has


 22   consciously decided not to include a local opt-out




  1   provision in the proposed rule.  We congratulate


  2   the committee on that judgment and we urge that you


  3   hold to it.  I believe that a local opt-out would


  4   leave us with essentially the same Babel of


  5   inconsistent rules and practices--I think I used


  6   the term higgly-piggly before--in this area that


  7   face us today.


  8             The circuits have adopted a bewildering


  9   variety of inconsistent rules for the handling of


 10   unbinding opinions.  Some circuits publish.  Some


 11   do not.  Some circuits allow you to cite them


 12   subject to various tests.  Others prohibit you from


 13   citing them in almost all circumstances.  One


 14   circuit seems to be saying that you may cite them


 15   but the court will either ignore them or refrain


 16   from mentioning them.


 17             In Mr. Hangley's article he summarizes the


 18   views of the various circuits as follows.  One, you


 19   cannot read our nonbinding opinion, A, First


 20   Circuit until recently, you must not talk about


 21   them.  B, Eleventh and Fifth Circuits in some


 22   cases, you may talk about them but first you have




  1   to find them.  Fifth Circuit in other cases, we


  2   discourage you from talking about them even if you


  3   find them; however, they are binding and we will


  4   apply them against your client.  D, Third Circuit


  5   until very recently, you are welcome to talk about


  6   them if you can find them; however, we'll not pay


  7   any attention.  Alice in Wonderland, ladies and


  8   gentlemen?


  9             You can read our nonbinding opinions


 10   but--Fourth, Sixth, Eighth, Tenth and for some


 11   cases District of Columbia Circuit--we prefer that


 12   you not talk about them.  Second, Seventh, Ninth


 13   Federal and for other cases District of Columbia


 14   Circuits, as well as recently First Circuit, you


 15   must not talk about them.  Third Circuit very


 16   recently, we still will not pay any attention to


 17   them.


 18             I don't mean to make a comedy of it but I


 19   think it's sort of revealing to place it in this


 20   context.


 21             To make matters worse, several of the


 22   circuits, including my own District of Columbia




  1   Circuit, have a sort of comity rule that prohibits


  2   citation of out-of-circuit opinions that could not


  3   be cited in the courts which wrote them.  That


  4   means that every appellate lawyer must become


  5   expert in the local rules of every circuit before


  6   he can cite and out-of-circuit case.


  7             I heard one commentator say well, these


  8   are really not problems because some lawyers or


  9   many lawyers only argue in their own circuit.  That


 10   is an answer but in my case I'm a member--I don't


 11   collect membership in circuits but I'm a member of


 12   the First, Second, Fourth, Fifth, Eleventh, Eighth,


 13   and Ninth Circuits and I've appeared in all of


 14   those circuits.  There is something known as planes


 15   and trains, so lawyers do get around these days.


 16             There's simply no need for all this


 17   complexity.  Traditionally lawyers and judges have


 18   not hesitated to cite the words of novelists,


 19   comedians, athletes and cartoon characters, not as


 20   binding precedent but simply for whatever


 21   persuasive value they may have.  There is no good


 22   reason for judges to treat their own words or the




  1   words of their colleagues any differently a priori


  2   and to set up artificial barriers to their


  3   citation.


  4             In conclusion, I again congratulate the


  5   committee upon its promulgations and


  6   recommendations of Rule 32.1 and it is my view and


  7   that of the Litigation Sectoin that the new rule is


  8   badly needed.  Thank you very much.


  9             JUDGE ALITO:  Thank you.


 10             Questions?  Carol?


 11             MS. MOONEY:  I have two questions.  You


 12   talked first about the unfair advantage to


 13   institutional litigants or even judges knowing


 14   about opinions that a lawyer does not.  Will that


 15   unfair advantage not disappear with the


 16   E-Government Act?


 17             MR. BEST:  I don't know that it will or it


 18   won't.  We discussed that as we heard the reliance


 19   on the E-Government Act.  I can't predict that.  I


 20   know that it's a jungle now.  I don't know that the


 21   act is going to clarify that jungle and I think it


 22   would be better if you do it the old-fashioned way




  1   and publish the opinions.


  2             MS. MOONEY:  Secondly, you seem to be


  3   making the distinction that the first two witnesses


  4   were not making; that is, separating citability


  5   from an opinion's binding or precedential value.


  6   At least a couple of our witnesses collapsed those


  7   two things.  Could you explain how you believe--


  8             MR. BEST:  I'm not sure that I believe


  9   there's any significance.  I think citability and


 10   precedential value, of course, is very important.


 11   I don't think I'm distinguishing between those two


 12   concepts.  I may be mentioning them in different


 13   aspects of the same problem.


 14             MS. MOONEY:   I thought you had.  Thank


 15   you.


 16             MR. SVETCOV:  Mr. Best, thank you very


 17   much.  Let me ask you a question.


 18             MR. BEST:  You're going to have to read


 19   those 4,000 opinions.


 20             MR. SVETCOV:  Well, let me ask you a


 21   question.  If the unpublished opinion begins with


 22   the following sentence, "The parties are familiar




  1   with the facts," and then goes on to discuss four


  2   or five different contentions let's say in a


  3   criminal case or a summary judgment case, how does


  4   one go about citing that?


  5             JUDGE LEVI:  I think there's something


  6   known as footnotes.


  7             MR. SVETCOV:  If "The parties are familiar


  8   with the facts" is the first sentence of the mem


  9   dispo, many of the Ninth Circuit decisions that are


 10   unpublished begin with that sentence and then go on


 11   over three or four pages to discuss contentions of


 12   law and answer the question and give the parties a


 13   disposition on the contentions raised without any


 14   explication of the facts, how do I as a subsequent


 15   practitioner looking at that disposition use it in


 16   my practice?


 17             MR. BEST:  It's a question of whether or


 18   not--I understand what you meant.  I didn't


 19   understand what you were saying before.  I think I


 20   would use it in seeing if it's generally a state of


 21   facts that requires further elaboration by me and I


 22   suppose I would try to get the record on appeal and




  1   see what the case is all about.


  2             MR. SVETCOV:  You would do that?


  3             MR. BEST:  I wouldn't do it in 4,000 and


  4   you wouldn't do it in 4,000 cases.


  5             MR. SVETCOV:  Exactly.


  6             MR. BEST:  But if something in the case is


  7   arresting in that circumstances, I might very well


  8   want to see the record on appeal.  It's a rule of


  9   reason, like everything else.


 10             MR. SVETCOV:  You listened to Judge Wood's


 11   testimony about the fact that circumstances are


 12   different in different circuits.  Not only the


 13   number of published versus unpublished opinions but


 14   the fact that in the Fourth Circuit 10 percent of


 15   the cases are published and in the Seventh Circuit


 16   43 percent of the cases are published.


 17             Doesn't that suggest that a


 18   one-size-fits-all uniform rule may not be the best


 19   answer for this particular problem but rather, that


 20   diversity is the better answer, rather than


 21   uniformity?  And you were able to figure out--you


 22   and Mr. Hangley were able to figure out all the




  1   various nuances in the various circuits on rules of


  2   publication.  They're not difficult to figure out.


  3   Why is uniformity better than diversity here?


  4             MR. BEST:  I think there should be a


  5   presumption toward uniformity and to the extent


  6   that you want to deviate from that, there must be


  7   exceptional circumstances that require it.  I doubt


  8   that there are.  I think uniformity is good.  I


  9   think that--


 10             MR. SVETCOV:  I've spent my whole life


 11   fighting for diversity.  I'm not about to change--


 12             MR. BEST:  You're using it in a different


 13   context.


 14             It's a homer concept.  You know all of the


 15   problems in your circuit.  You know how to deal,


 16   just as I know cases like Smith v. Pollan and very


 17   arcane ways of doing things in the District of


 18   Columbia Circuit, but we're trying to have a


 19   uniform application and I think that's important.


 20             MR. SVETCOV:  I go down to the Fifth


 21   Circuit all the time.  I can figure out the rules.


 22             MR. BEST:  I congratulate you.




  1             JUDGE ALITO:  Any other questions of Mr.


  2   Best?


  3             Thank you very much.  We appreciate it.


  4             Professor Stephen R. Barnett of Boalt Hall


  5   Law School.




  7             MR. BARNETT:  Good morning.  My name is


  8   Stephen Barnett.  I'm an emeritus professor of law


  9   at Boalt Hall in Berkeley.  I thank the chair and


 10   the committee for allowing me to testify today on


 11   the proposed FRAP Rule 32.1, which I strongly


 12   support.


 13             This committee has been hit by an


 14   avalanche of public comments and I confess to


 15   having contributed my share.  In addition to this


 16   morning's statement, I earlier submitted comments


 17   in reply, in part, to Judge Kozinski's comments.


 18   In the spirit of expiation then, I thought I might


 19   be most useful to the committee this morning by


 20   offering some analysis of what's in that daunting


 21   pile of 500 plus comments, so that's what I propose


 22   to do briefly this morning.




  1             That great legal realist, Holmes--that's


  2   Sherlock, not Wendell--famously solved a case by


  3   pointing to the dog that did not bark.  What I find


  4   most telling in the comments here is a whole


  5   kennelful of dogs that did not bark.  The proposed


  6   rule, after all, would require four federal


  7   circuits to do essentially what the other nine


  8   federal circuits already do--allow their


  9   unpublished dispositions to be cited.  That's also


 10   what a growing number of states, now 22 of them,


 11   already do. We thus have actual contemporaneous


 12   experience in both the federal and state courts


 13   with what rules that are equivalent to 32.1, in


 14   fact, do.


 15             What we have in almost all of the 500


 16   comments meanwhile are predictions about bad things


 17   that will happen if the rule is adopted.  If those


 18   predictions are accurate, we would expect to see


 19   some evidence of such bad things in jurisdictions


 20   where equivalents of Rule 32.1 have been adopted.


 21   We would expect judges and lawyers from the nine


 22   circuits that allow citation of their unpublished




  1   opinions, the citable circuits if you will, to have


  2   filed comments saying to this committee don't do


  3   it; we did it and look what happened to us.  We'd


  4   expect those comments to lay out in painful detail


  5   all the adverse consequences that have been


  6   suffered in those circuits as a result of making


  7   opinions citable and we'd expect to get the same


  8   kind of reports from judges and lawyers in the 22


  9   states where unpublished opinions are now citable.


 10             What we get, however, in the entire stack


 11   of comments is virtually no such reports.  This is


 12   the number one dog that did not bark.  In their


 13   silence on this point the comments validate what


 14   Judge Frank Easterbrook wrote in his comment.


 15   "What would matter are adverse effects and adverse


 16   reactions from the bar or judges of the nine


 17   circuits and 21 states that now allow citation to


 18   unpublished orders and from that quarter no protest


 19   has been heard," says Judge Easterbrook.


 20             Specifically I will report briefly on


 21   three groups of lawyers or judges in the citable


 22   circuits from whom one would have expected to hear




  1   of such adverse effects if they existed.  These are


  2   circuit judges, lawyers, and federal public


  3   defenders.  Then I'll report on three additional


  4   groups--first, additional public defenders in the


  5   citable circuits whom I surveyed myself, then


  6   lawyers in the Ninth Circuit, and federal circuit


  7   judges in the four no-citation circuits.


  8             First, federal circuit judges in the nine


  9   citable circuits.  The comments received from


 10   federal circuits judges in the nine circuits where


 11   citation to unpublished orders is now allowed are


 12   striking in three respects--first, their paucity;


 13   second, their failure to report adverse reactions


 14   or effects from such citability; and third, their


 15   failure to refer to, let alone criticize, their own


 16   circuit's pro-citation rules.


 17             In the first place, the number of comments


 18   from circuit judges in the citable circuits is only


 19   eight.  In my written statement I said six but two


 20   came in subsequent to that.  These two letters from


 21   Judge Burch of the Eleventh Circuit and Chief Judge


 22   Loken of the Eighth Circuit are puzzling.  They




  1   oppose the proposed rule and they report that other


  2   judges in their circuit are opposed without


  3   mentioning that their own circuits both have rules


  4   allowing citation of unpublished opinions--that is,


  5   the Eighth and the Eleventh--rules comparable to


  6   FRAP 32.1.  Neither of these letters refers to the


  7   existing rule in the writer's own circuit, let


  8   alone criticizes it and says it's terrible.


  9             And one of all eight letters point to


 10   adverse effects from the current regimes of


 11   citability in the writer's own circuits.  To the


 12   extent that they refer at all to the citation rules


 13   of their circuits, these letters mostly praise


 14   those rules.  And I would call your attention to


 15   Judge Ebel's letter from the Tenth Circuit, Judge


 16   Michael from the Fourth Circuit, Judge Martin from


 17   the Sixth.


 18             And Judge Bright this morning was eloquent


 19   on the point.  He's a wonderful natural experiment,


 20   if you will, since he's sat in all these circuits


 21   with all these different citation rules and he said


 22   he sees no difference.  He's afraid there would be




  1   a difference under FRAP 32.1 because it would bar


  2   what I call discouraging words.  Well, as I've


  3   argued in my comments, I don't think it would bar


  4   them, so I think the one difference Judge Bright


  5   sees would not, in fact, be there.


  6             So that's judges from the citable


  7   circuits.  With respect to lawyers from the nine


  8   citable circuits, if you rule out Washington


  9   lawyers who, with the exception of Mr. Best and


 10   some others, may not focus particularly on the D.C.


 11   Circuit and its citation rule, the letters from


 12   lawyers are almost equally sparse.  And while


 13   almost all of these comments oppose the proposed


 14   rule, their opposition only rarely is based on any


 15   harms that they claim to result from the citation


 16   that is now allowed in the writer's jurisdiction.


 17   Again the dog doesn't bark.


 18             With respect to federal public defenders


 19   in the nine citable circuits, here, too, you would


 20   expect that if they were chaffing under the


 21   citation rules in those circuits that they would be


 22   saying so now to warn and protect their colleagues




  1   in the four no-citation circuits.  When one looks


  2   for comments from federal public defenders in the


  3   circuits that now allow citation, however, I count


  4   only four and while these comments oppose the rule,


  5   they again don't mention, let alone criticize, the


  6   citability rule under which they, in fact,


  7   practice.


  8             Given the paucity of comments from federal


  9   public defenders in circuits allowing citation, I


 10   conducted my own little fact-finding inquiry.  I


 11   interviewed by telephone eight randomly selected


 12   federal public defender attorneys in the Fourth,


 13   Fifth, Eleventh and D.C. Circuits and I have their


 14   names and my notes of the conversations and am


 15   willing to make them available to anyone who wants


 16   to see them.


 17             Asked whether they thought the citability


 18   of unpublished opinions in their circuit added to


 19   their research time, the attorneys unanimously said


 20   essentially no.  They said "Not a bit" or it


 21   doesn't add any burden at all, or perhaps a little


 22   bit, such as 2.5 percent.




  1             In the Fifth Circuit, whose unpublished


  2   opinions only recently have been put no line and


  3   hence there should be no substantial factor of


  4   custom or habit, the appellate chief in Houston


  5   reported that there was "no added burden."


  6             More than one of the attorneys I


  7   questioned expressed surprise and some even


  8   derision that their colleagues in the Ninth Circuit


  9   were opposed to a rule allowing use of unpublished


 10   opinions.  Public defenders in the Ninth Circuit


 11   "must be scared of computer research," said one


 12   attorney.


 13             "No one complains about citability," said


 14   the public defender in Dallas.  "This is the kind


 15   of research that lawyers do," said more than one


 16   attorney.  More than one also noted that an


 17   unpublished opinion "can be helpful when it's right


 18   on point on the facts."


 19             Does citability of unpublished opinions


 20   entail a financial burden for public defenders


 21   offices?  The attorneys unanimously said no.  Lexis


 22   is provided to those offices completely free and




  1   Westlaw is provided at the special rate of $150 a


  2   month, the same rate judges get, I'm told.


  3             It was acknowledged, however, that


  4   litigants who are pro se or had no right to counsel


  5   already are hurt by the cost of Lexis and Westlaw


  6   and would be marginally more hurt if unpublished


  7   opinions were included in the database.  But, said


  8   one attorney, "You go on the merits.  If an opinion


  9   is there, it's there."  So my survey gives quite a


 10   different picture from that produced by the


 11   comments from public defenders in the Ninth


 12   Circuit.


 13             Let me look now quickly at Ninth Circuit


 14   lawyers.  Another notably quiet kennel in this


 15   proceeding has been the offices of lawyers within


 16   the Ninth Circuit who support the proposed rule.


 17   There must be some such lawyers but you wouldn't


 18   know it from looking at these comments.  I count


 19   more than 100 comments from Ninth Circuit lawyers


 20   opposing FRAP 32.1 while the comments from Ninth


 21   Circuit lawyers supporting the proposed rules can


 22   be counted on one's figures.  How can this be, one




  1   may wonder?


  2             Judge Tashima reports that there was a


  3   letter-writing campaign among lawyers in the Ninth


  4   Circuit to oppose the new rule, but lawyers are no


  5   more herdable than cats.  No mere letter-writing


  6   campaign would produce this kind of a landscape.


  7   So what did?  How is it that Ninth  Circuit


  8   lawyers, so famous for their independence, their


  9   fractiousness, their readiness to take on


 10   motherhood, apple pie, or recently God, have


 11   suddenly found an important legal issue that's


 12   highly controversial elsewhere but on which


 13   virtually all Ninth Circuit lawyers agree.  How has


 14   this committee become such a powerful builder of


 15   consensus?


 16             The answer lies, of course, not in the


 17   fairly counted views of Ninth Circuit lawyers but


 18   in the dynamic of self-selection.  The majority of


 19   Ninth Circuit judges are known to be strongly


 20   opposed to the proposed rule.  Given that fact,


 21   lawyers who practice in the Ninth Circuit and who


 22   also oppose the rule have every reason to say so,




  1   and may it please the court.  Lawyers who support


  2   the rule, meanwhile, have no need to vote against


  3   the judges before whom they practice.  These


  4   lawyers just take a walk.  They don't submit


  5   comments.  Thus, we get the one-sided results


  6   displayed here.


  7             With respect to federal circuit judges in


  8   the no-citation circuits, we can count the votes


  9   pretty much from their comments filed here.  As I


 10   have said, the circuits that allow citation have


 11   produced only eight comments from circuit judges


 12   but what about the four circuits that ban


 13   citation--the Second, Seventh, Ninth and Federal?


 14   From those quarters there's plenty of opposition to


 15   the proposed rule.  It's worth looking closer,


 16   however, at the vote counts in these circuits,


 17   starting with the Ninth.


 18             While the vote count in the Ninth Circuit


 19   seems monolithic, 38 judges opposing the rule and


 20   only Judge Tashima expressly supporting it, but


 21   that may not be the whole story.  Judge Tashima


 22   reports that there was a letter-writing campaign




  1   among both lawyers and judges to oppose the rule.


  2   He and Judge Thomas also report that the Ninth


  3   Circuit was closely split on the proposed rule.


  4   Well, the eventual comments certainly are not


  5   closely split but it may be that like Judge Thomas,


  6   other Ninth Circuit judges sacrificed their own


  7   views on the alter of circuit solidarity.


  8             And even so the Ninth Circuit's vote was


  9   far from unanimous.  Six active judges did not


 10   vote.  There may be a question whether you consider


 11   that votes against the majority or not.  The vote


 12   among active judges was 23 to seven in the Ninth


 13   Circuit--one-sided but not overwhelming.  It's only


 14   when you add the senior judges and 15 senior judges


 15   oppose the rule while three didn't vote, that the


 16   margin became 38 to 10.


 17             One may wonder, of course, as with the


 18   Ninth Circuit lawyers, how is it that Ninth Circuit


 19   judges, so famously independent and ready for


 20   dissent, in this case produced only one expressed


 21   dissent from 48 judges.  I have no answer to that


 22   question.




  1             Turning to the Federal Circuit, it


  2   out-does the Ninth, producing unanimity against the


  3   proposed rule.  But the other two no-citation


  4   circuits, the Seventh and Second, are split.  In


  5   the Seventh Circuit the vote among all judges was


  6   nine to six.  Among active judges alone it was


  7   eight to three.  I guess those are the figures that


  8   Judge Wood reported this morning.  Among the three


  9   dissenters, Judges Easterbrook and Ripple both


 10   wrote forceful comments supporting the proposed


 11   rule.  As Judge Wood indicated, the majority also


 12   suggested a fallback compromise based on routinely


 13   granting motions for publication.


 14             Then in the Second Circuit the vote among


 15   all judges was 19 to four opposing the rule.  The


 16   19, however, included all 11 of the circuit's


 17   senior judges.  Among active judges alone the vote


 18   was eight to four.  As in the Seventh Circuit, the


 19   Second Circuit majority made a significant


 20   compromise suggestion.  This was that if the rule


 21   goes forward, it operate only prospectively.


 22             Then there's a special fact about the




  1   Second Circuit that should be noted.  While there


  2   was apparently no statement from any dissenting


  3   circuit judge in the Second Circuit, there exists a


  4   mutiny among the district judges of the Second


  5   Circuit.  As I relayed in my statement at page 13,


  6   several district judges in the Second Circuit have


  7   been citing summary orders of the Second Circuit,


  8   in defiance of that court's no-citation rule.  See


  9   the Harris case, which is cited in my statement,


 10   where Judge Lynch describes the Second Circuit as


 11   pretending that this decision never happened.


 12             Well, the action of these district judges


 13   perhaps suggests the depth of the disagreement in


 14   the Second Circuit.  It may also suggest that


 15   citability is becoming a de facto norm in the


 16   Second Circuit.


 17             In sum, the rather close splits in the


 18   Seventh and Second Circuits, combined with the


 19   suggested fallback compromises by the majority in


 20   each case, may indicate that those circuits, the


 21   Second and Seventh, do not strongly oppose


 22   citability.  That may be particularly so for the




  1   Second Circuit in which the states of New York,


  2   Connecticut and Vermont all allow citation, and it


  3   may become so for the Seventh Circuit if Illinois


  4   switches to citability and the Rules Committee of


  5   the Illinois Supreme Court, I'm told, is meeting


  6   later this month on a proposal to switch to


  7   citability with respect to at least some orders of


  8   the Illinois Courts of Appeal.


  9             The bottom line then, the bottom line of


 10   the vote count is that of the four no-citation


 11   circuits, the Second and Seventh and perhaps even


 12   the Ninth are split on the proposed rule.  Only the


 13   Federal Circuit is monolithic.


 14             In contrast, the nine circuits that permit


 15   citation appear to be quite satisfied with the rule


 16   that they have.  Not a single judge from a circuit


 17   that allows citation and virtually no one else from


 18   such a circuit has filed a comment complaining


 19   about that rule of citability. This is a remarkable


 20   record, it seems to me.  It may not bark but it


 21   speaks volumes.  Thank you.


 22             JUDGE ALITO:  Thank you, Professor




  1   Barnett.


  2             Questions?


  3             MR. SVETCOV:  Professor Barnett, I have to


  4   confess that I graduated from Boalt Hall four years


  5   ago and I guess--


  6             MR. BARNETT:  One of our most


  7   distinguished graduates.


  8             MR. SVETCOV:  Except that I probably am


  9   getting an F in your class on publication.  But


 10   don't you account for the Hound of the Baskervilles


 11   in your presentation in Judge Wood's description of


 12   the different ways in which circuits treat


 13   unpublished opinions, the various percentages of


 14   cases that are not published, and in particular,


 15   the ways in which unpublished opinions are crafted.


 16             Namely, as I mentioned to Mr. Best a few


 17   minutes ago, in the Ninth Circuit the great


 18   majority of unpublished opinions begin with the


 19   words, "The parties are familiar with the facts."


 20   Then the discussion that follows is a discussion of


 21   the legal issues that were raised by the appellant


 22   and are disposed of for the benefit of the parties




  1   who are familiar with the facts.  As a practicing


  2   lawyer in the Ninth Circuit, I don't see how I


  3   could make very much use of that type of opinion.


  4             I contrast that with cases that are


  5   sometimes published in the State of California in


  6   which the judges will spend 30 pages laying out all


  7   of the facts and addressing all of the legal issues


  8   fully, but they don't publish because California,


  9   as you know, has a rule that says once there's a


 10   principle of law in place in a court of appeal


 11   decision, that applications of that rule are not to


 12   be published.


 13             So you do have these different types of


 14   opinions.   Doesn't that mitigate in favor of


 15   diversity rather than uniformity?


 16             MR. BARNETT:  Well, I have my own


 17   arguments with the state judges in California about


 18   this, too.  I think you have to ask whether it's


 19   underlying essential differences that make the


 20   difference or whether it's practices that the


 21   judges have acquired perhaps for reasons that are


 22   not congruent with the best interest of the




  1   judiciary and the litigants.


  2             For example, if you compare these


  3   California state decisions with state decisions in


  4   New York, you find it's roughly the same number of


  5   cases decided each year, about 12,000.  In New York


  6   all published, all with opinions, all citable.  In