Copyright 2005 ALM Properties

The Recorder
June 16, 2005 Thursday

Conference to mull unpublished opinions
Jeff Chorney

The U.S. Judicial Conference this fall will take up the controversy over whether lawyers should be allowed to cite unpublished opinions, following a unanimous vote Wednesday by a lower committee.

Most federal circuits already allow citation of unpublished opinions.

Only the Ninth Circuit U.S. Court of Appeals - which is the largest appellate court - and three others currently prohibit citation. The new rule, 32.1, would bring all federal circuits in line.

There's also an effort to change state rules in California to allow citation of unpublished opinions.

An overwhelming majority of Ninth Circuit judges have resisted the rule change. According to a survey, 31 active judges said the new rule would cause problems, including a dramatic increase in the already crushing workload.

But the opinions of Ninth Circuit judges apparently didn't resonate much with their colleagues. Wednesday's vote was based largely on the empirical data presented along with that same survey, said John Rabiej, a judiciary staffer.

Other judges and attorneys say that allowing full citation will bring more consistency to the law and will require judges to be more accountable when they decide cases.

Wednesday's vote came out of the 14-member Committee on Rules of Practice and Procedure, which met in Boston and is chaired by Chief U.S. District Judge David Levi of the Eastern District of California. The full Judicial Conference will take up the issue at its September meeting. If the conference approves the rule change, the proposal will proceed to the U.S. Supreme Court and then Congress.