ADMINISTRATIVE OFFICES OF THE U.S. COURTS
ADVISORY COMMITTEE ON APPELLATE RULES
Tuesday, April 13, 2004
One Columbus Circle, N.E.
HONORABLE SAMUEL A. ALITO, JR., Chairman
PROFESSOR PATRICK J. SCHILTZ
HONORABLE CARL E. STEWART
MARK I. LEVY, ESQ.
PROFESSOR CAROL ANN MOONEY
DOUGLAS LETTER, ESQ.
Representative of Solicitor General
SANFORD SVETCOV, ESQ.
MARCIA W. WALDRON
Federal Judicial Center
PROFESSOR DANIEL R. COQUILLETTE
PETER G. McCABE
Secretary, Commission on Rules of Practice and
HONORABLE JOHN G. ROBERTS, JR.
HONORABLE T.S. ELLIS, III
W. THOMAS McGOUGH, JR., ESQ.
JOHN K. RABIEJ
Chief, Rules Committees Support Office
HONORABLE DAVID F. LEVI
HONORABLE J. GARVIN MURTHA
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,
Richard Frankel, Goldberg-Deitzler Fellow, 66
Trial Lawyers for Public Justice,
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,
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,
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
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?
21 STATEMENT OF THE HON. MYRON H. 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
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
maybe one or two may be around here.
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
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.
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
"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
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
volumes are thicker now, you know?
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
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
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
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
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
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
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
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,
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
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
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
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
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,
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.
3 STATEMENT OF THE HON. DIANE P. WOOD
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
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
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
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
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
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
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?
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
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
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
unrealistic hopes and I think that that's quite
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
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
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
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
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
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
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
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
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
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
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
the order category and thus noncitable.
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
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
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
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
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
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
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
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
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.
We, in fact, in that kind
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
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
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
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
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
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
to hear the earlier case back when it was issued.
1 It was the law of the circuit and we were bound to
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
publishing. The question is
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
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
seen one that was like five years late but I think
1 within a fairly reasonable range there's no time
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
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
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
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
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
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
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
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
absence of no-citation rules in the various
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
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
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
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
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
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
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
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
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
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
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
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
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
20 We believe the only way to truly preserve
21 a rule of law system is to require that all
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
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
21 Now in terms of reality, it's also true
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
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
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,
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
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
20 And finally, while it's true that judicial
21 workload will increase in the short run, we think
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
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
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
opinions bear precedential weight, meaning have
1 substance, and isn't that beyond the statutory
2 power of the Supreme Court and therefore this
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
21 To make matters worse, several of the
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
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
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
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
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
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
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
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
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
1 JUDGE ALITO: Any other questions of Mr.
3 Thank you very much. We appreciate it.
4 Professor Stephen R. Barnett of Boalt Hall
5 Law School.
6 STATEMENT OF STEPHEN R. BARNETT
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
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
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
7 California, 93 percent not citable. And you may
8 say isn't that just a difference in cultures? I
9 say yes, but maybe it shows that California ought