51-DEC FEDRLAW 32 51-DEC Fed. Law. 32 (Cite as: 51-DEC Fed. Law. 32) Federal Lawyer November/December, 2004 *32 IN SUPPORT OF PROPOSED FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A REPLY TO JUDGE ALEX KOZINSKI Stephen R. Barnett [FNa1] Copyright Copr. 2004 by the Federal Bar Association; Stephen R. Barnett Editor's Note: On June 15, 2004, the U.S. Judicial Conference's Standing Committee on Rules sent back to the conference's Advisory Committee on Appellate Rules, for further study, the proposed Federal Rule of Appellate Procedure 32.1, which would lift prohibitions and restrictions on the citation of unpublished opinions in federal courts. The proposed rule has been highly controversial, provoking more than 500 comments to the advisory committee. In its June issue, The Federal Lawyer published a comment submitted to the advisory committee earlier this year by Judge Alex Kozinski, opposing Rule 32.1. The following comment by Stephen R. Barnett -- revised for publication here -- was submitted to the advisory committee in reply to Judge Kozinski's comment. IN POSTPONING ACTION ON THE PROPOSED RULE, THE STANDING COMMITTEE ON RULES REQUESTED THE FEDERAL JUDICIAL CENTER (FJC) TO STUDY THE ISSUE FURTHER. THE FJC IS EXPECTED TO REPORT ABOUT JUNE 2005. AT THAT TIME, THE ADVISORY COMMITTEE ON APPELLATE RULES WILL DECIDE WHETHER TO FORWARD THE PROPOSAL AGAIN TO THE STANDING COMMITTEE. LAW IS NOT WHAT JUDGES SAY; IT'S WHAT THEY DECIDE The case for or against the proposed rule depends, in part, on what law is. For Judge Kozinski, it appears that law is what judges say. The judge's task involves "anticipating how the language of the disposition will be read by future litigants and courts, and how small variations in wording might be imbued with meanings never intended." Hon. Alex Kozinski, "In Opposition to Proposed Federal Rule of Appellate Procedure 32.1," The Federal Lawyer, June 2004, p. 38 (cited hereafter to page alone). Given this view, Judge Kozinski sees danger in letting unpublished dispositions be cited, because, in all probability, such dispositions were "drafted entirely by law clerks and staff attorneys." As a result, these dispositions may embody "nuances in language" that are believed to -- but in fact do not -- "reflect the view of the three judges on the panel," Judge Kozinski writes (p. 39). I submit that law is not what judges say, but what they decide. As we all learned in the first weeks of law school, what judges say is only dictum; such words are to be distinguished from the holding of a case, or the ratio decidendi, which alone is the law that is made. "No court is required to follow another court's dicta." Indiana Harbor Belt RR Co. v. American Cyanamid Co., 916 F.2d 1174, 1176 (7th Cir. 1990) (Posner, J.). The power of judges to make law -- unlike the lawmaking power of legislators or executive officials -- is limited by Article III to the judicial function of deciding cases. The bounds of the law that judges make in a case are thus determined by the facts presented and the decision made, not by the identity, intent, or words of the judges. I therefore agree with one of the conflicting pictures of the Ninth Circuit's judicial product that Judge Kozinski presents. I do not agree with his characterization of the unpublished dispositions of the Ninth Circuit as "sausage" that the makers tell us is "not safe for human consumption" (p. 37). Rather, I accept Judge Kozinski's assurance that "[w]e are very careful to ensure that the result we reach in every case is right, and I believe we succeed" (p. 38). (Emphasis in original.) I agree that the essential feature is the result, or decision, that the court reaches; the result becomes the law that the court makes when it decides the case. Under the common law system, every court decision does make law. "To the common lawyer, every decision of every court is a precedent; ... [and] it is the decision -- not the opinion -- that constitutes the law." Danny *33 P. Boggs and Brian P. Brooks, " Unpublished Opinions and the Nature of Precedent," 4 Green Bag 17 (2000). Professor Richard B. Cappalli expressed these points well in his article "The Common Law's Case Against Non-Precedential Opinions," 76 S. Cal.L.Rev. 755 (p. 773-779) (2003). For example, Professor Cappalli writes: One who is trained in legal method must have difficulty accepting Judge Kozinski's views about an appellate judge's duties in creating law [referring to Judge Kozinski's opinion for the court in Hart v. Massanari, 166 F.3d 1155 (9th Cir. 2001), where Judge Kozinski expressed essentially the same views as he did in his TFL comment]. ... [This is in part because] the power to determine the holding of a judicial precedent resides in future judges applying it. ... Lacking omniscience, an appellate panel cannot predict what may come before its court in future days. ... The common law method accepts the impossibility of such prevision by judges and wisely leaves the implications of a precedent in the hands of future courts. Judge Kozinski and others have posited a new common law in which a precedent controls not through its ideas but through its verbal expression. This reverses the maxim, "It is not what a court says, but what it does." [T]he common law insists that far more important than verbiage to the understanding of a decisional rule is an appreciation of the case facts that generated the rule. Judge Kozinski suggests that lower-court judges cannot tell the difference between a holding and a dictum, or between the Ninth Circuit's "opinions" and what it calls "memdispos." He writes: ... [E]ven unpublished dispositions tend to be viewed with fear and awe, simply because they, too, appear to have been written (but most likely were not) by three circuit judges. This is not so much of a problem in the Court of Appeals, where we are well aware of the distinction between opinions and unpublished dispositions. But it is a serious and ongoing problem in the lower courts of the circuit, where the distinction is much less well understood or respected. ... By prohibiting judges of this circuit -- district judges, bankruptcy judges, bankruptcy appellate panel judges, magistrate judges -- from relying on unpublished dispositions, we are giving important instructions as to how they are to conduct their business. [p. 37] I find it hard to accept this notion of appellate judges as a sort of secret society, a legal Skull and Bones, whose initiates alone have been vouchsafed the secret of distinguishing a holding from a dictum, or an opinion from a memdispo. Lower court judges -- even magistrate judges -- know how to read a case; if they do not, they lack competence in one of the basic functions of their job. Judge Edward R. Becker of the Third Circuit expressed a more attractive view to the advisory committee: "[C]itations to NPO's [Not Precedential Opinions] also help District Judges in the same way they help us. District Judges know they are not bound by NPO's. They are judges of the Third Article too and exercise independent judgment." Statement to the Advisory Committee on Appellate Rules, April 13, 2004, p. 2. Not only are lower court judges more adept at reading judicial opinions than Judge Kozinski acknowledges, but the unpublished opinions (the Ninth Circuit's memdispos) are not as bad as he self-woundingly charges -- they are neither bad "sausage" nor "a time bomb" (pp. 37-38). One need only page through the Federal Appendix, that oxymoronic publisher of "unpublished" opinions, to see that the opinions are serviceable and in no way beyond the realm of citability. Judge Kozinski overlooks one reason for this. Although he equates a memdispo with "a letter to the parties letting them know that the court thought about their case and understands the issues" (p. 38), there is a further audience: the Supreme Court. As Judge Frank H. Easterbrook has pointed out: It has never been true that judges write these orders for the parties and counsel alone, and thus are certain to include more (or less) when strangers can use them; the audience always has included the Supreme Court, which can and does review unpublished decisions. This may be why the nine circuits that allow citation to these documents have not experienced difficulty: the prospect of citation to a different panel requires no more of the order's author than does the prospect of criticism in a petition for a writ of certiorari. Letter to the Advisory Committee on Appellate Rules, Feb. 13, 2004, p. 2. Judge Kozinski claims that "despite careful scrutiny of anything at all that might look like a submerged conflict among our unpublished cases, nothing whatever has turned up" (p. 39). This assessment ignores, if nothing else, United States v. Rivera-Sanchez, 222 F.3d 1057, 1062-63 (9th Cir. 2000). In that case, the Ninth Circuit admitted that various panels of the court had issued at least 20 unpublished rulings on an unsettled issue of law, instructing district courts to take three different approaches -- all before any published opinion addressed the issue. Aside from showing that similarly situated litigants are subjected to differing legal treatments, Rivera-Sanchez shows how inefficient no-citation rules can be: 20 cases had to be fully litigated, with counsel and courts blinding themselves to previous decisions of the same issue, whereas citability would have allowed a first or second case to set the rule for all subsequent cases. *34 Judge Kozinski Wrongly Claims That Rule 32.1 Would Make All Unpublished Opinions Precedential Judge Kozinski attributes to the advisory committee -- in its note favoring the proposed rule -- a "spurious attempt to draw a distinction between citability and precedential value." "No such distinction is possible," he asserts (p. 38). It is not clear why not. The committee's proposed rule plainly protects only the "citation" of judicial opinions, without requiring that the cited opinions be precedential. Proposed Federal Rule of Appellate Procedure Rule 32.1(a) reads as follows: (a) Citation Permitted. No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished", "not for publication", "non-precedential", "not precedent", or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions. The chair of the advisory committee has stressed that the proposed rule "says nothing whatsoever about the effect that a court must give" to an unpublished opinion, and that the "one and only issue" addressed by the rule is "the ability of parties to cite opinions. ..." Advisory Committee Note, May 22, 2003, p. 28. The difference between citability and citation for precedential value thus seems real, not spurious. Judge Kozinski asserts that "cases are cited almost exclusively for their precedential value" (p. 38). (Emphasis in original.) The party citing a case is saying, Judge Kozinski posits: "This is what that court did in very similar circumstances; therefore, under the doctrine of stare decisis, this court ought to do the same" (p. 38). The party indeed may be saying that, but party claims are not necessarily the law. Where the unpublished opinions are "not precedential" and are citable only for their "persuasive" value -- as is true now in four circuits (the Fifth, Eighth, Tenth, and Eleventh), and as could be true in any circuit under the proposed Rule 32.1 -- the party's reliance on stare decisis, if admissible at all, would lack legal effect. The court would decide whether the prior decision was persuasive, independently of the ruling's status as a prior decision. It is true that the concepts of precedent and persuasiveness may overlap. A prior decision on point tends to be more persuasive than the absence of such a decision. Other things being equal, it is easier to follow a lead than to blaze one's own trail. So, if prior opinions may be cited, they will be followed, I think, more often than if they may not be cited. Ironically, Judge Kozinski himself has disagreed, suggesting that citation has not even a persuasive effect: "Citing a precedent is, of course, not the same as following it; 'respectfully disagree' within five words of 'learned colleagues' is almost a cliche." Hart v. Massanari, 256 F.3d at 1170. If citing a case may not have even a persuasive effect, a fortiori it need not have a precedential effect, as Judge Kozinski now claims that it must. A TREND TOWARD CITABILITY Nine of the 13 circuits -- all but the Second, Seventh, Ninth, and Federal -- now allow citation of their unpublished opinions. They do so without apparent regrets or ill effects. (Judge Kozinski dismisses the fact that "other circuits have changed their rules as to citability" without mentioning that all those "changes" have been in one direction: toward citability.) While Judge Kozinski brands as "glib" my observation that "the sky has not fallen" in circuits adopting citability (p. 40), Judge Easterbrook has expressed a thought similar to mine: "What would matter are adverse effects and adverse reactions from the bar or judges of the 9 circuits (and 21 states) that now allow citation to unpublished orders. And from that quarter no protest has been heard." Letter to the Advisory Committee, p. 1. (Emphasis in original.) Moreover, of the four circuits that remain in the no-citation column, two rest there uneasily. In the Seventh Circuit, the "vote" in the notice-and-comment proceeding was an apparent 9 to 6: eight active judges and one senior judge signed a letter opposing the proposed rule, while three active and three senior judges did not sign it. Letter of Nine Seventh-Circuit Judges, Feb. 11, 2004. Among those who did not sign, Judge Frank Easterbrook and Judge Kenneth F. Ripple each wrote a letter supporting the proposed rule. Letters of Feb. 13, 1964 (Easterbrook); Feb. 12, 1964 (Ripple). In the Second Circuit, the vote among active judges was 8 to 4 against the rule (eight judges signing the chief judge's letter and four not doing so). But because all 11 of the circuit's senior judges signed the letter, the total vote was 19 to 4. Letter of Chief Judge John M. Walker Jr., Feb. 11, 2004. Perhaps reflecting the 8-4 split, there is a mutiny going on among district judges of the Second Circuit. Although that court's Local Rule
0.23 bans citation of its "summary orders" -- orders accompanied by brief written statements, which the court uses to resolve some 60 percent of its cases -- within the past three years several district judges in the Second Circuit have been citing those orders. The apparent leader of this uprising, Judge Gerard E. Lynch, has explained: There is apparently no published Second Circuit authority directly on point for the proposition [at issue in the case]. In the "unpublished" opinion in Corredor, which of course is published to the world on both the LEXIS and Westlaw services, the Court expressly decides the point. ... Yet the Second Circuit continues to adhere to its technological[ly] outdated rule prohibiting parties from citing such decisions, Local Rule
0.23, thus pretending that this decision never happened and that it remains free to decide an identical case in the opposite manner because it remains unbound by this precedent. This Court nevertheless finds the opinion of a distinguished Second Circuit panel highly persuasive, at least as worthy *35 of citation as law review student notes, and eminently predictive of how the Court would in fact decide a future case such as this one. Harris v. United Federation of Teachers, 2002 U.S. Dist. Lexis 15024, *2 n.2 (S.D.N.Y. 2002); see also Security Insurance Co. v. Old Dominion Freight Line Inc., 314 F. Supp. 2d 201, 203 n.1 (2003); Ira Brad Matetsky, "Ignoring Rule 0.23: Citing Summary Orders in the Second Circuit," N.Y.L.J. 4 (Feb. 9, 2004). The Second Circuit Court of Appeals appears to have made no effort to quell this rebellion, thus suggesting that the court acquiesces in the disregard of its rule, and perhaps that citation is de facto allowed. (This outcome would make sense, because the rule's stated raison d'etre -- that summary orders are "unreported or not uniformly available to the parties" -- is no longer true.) Outvoted 9 to 4 in the federal circuits, Judge Kozinski seeks refuge in the state of California, which he says is "firmly committed to its noncitation rule" (p. 41). In fact, the issue is highly controversial in California. See, e.g., William Rylaarsdam, "Lawyers Must Resist Movement to Cite Unpublished Opinions," Daily Journal, March 3, 2004. While Judge Kozinski in his present comment says virtually nothing about states outside the Ninth Circuit, he was not always so provincial. In his 2002 testimony before a subcommittee of the House Judiciary Committee, Judge Kozinski spoke at length about the status of no-citation rules in the state courts. Relying on a 2001 study, Judge Kozinski claimed that 35 states had a "mandatory prohibition phrased much like the Ninth Circuit's rule." Statement of Judge Kozinski, Unpublished Judicial Opinions: Hearing Before the House Subcommittee on Courts, the Internet, and Intellectual Property, 107th Cong. (2002), p. 15. Since that time, the situation has changed dramatically. Seven states -- Texas, Utah, West Virginia, Alaska, Iowa, Kansas, and North Carolina -- have switched from not allowing citation to allowing it, either for precedential value (the first three states) or for persuasive value only (the latter four states). Instead of 35 states adhering to no-citation rules, the lineup now is 24 states that still ban citation and 22 that allow it, with the rest on the fence -- virtually a tie. The latest news is from Illinois. A special committee appointed by the Illinois Supreme Court has proposed lifting the state's no-citation rule to allow citation of the unpublished "written orders" of the Illinois appellate court for their "persuasive value." At a hearing held on Sept. 10, 2004, seven witnesses -- including the chairs of the Illinois and Chicago bar associations -- all spoke in favor of the proposal. The Illinois Supreme Court's Rules Committee was expected to approve the proposal and the Illinois Supreme Court to adopt it. See Stephen R. Barnett, "To Cite or Not to Cite: Ask Illinois About Unpublished Cases," Daily Journal, Oct. 7, 2004. A switch by such an important state as Illinois could be a tipping point that causes other no-citation states -- even California -- to reconsider their positions. THE POTENTIAL IMPACT ON POOR AND WEAK LITIGANTS IS VASTLY EXAGGERATED Judge Kozinski cites a student note in the Yale Law Journal as "persuasively" showing that "the poor and weak litigants ... will be most adversely affected by opening the floodgates to citation of unpublished dispositions" (p. 41). See Daniel B. Levin, Note, "Fairness and Precedent," 110 Yale L.J. 1295 (1298-1301) (2001). An examination of the note shows no such persuasiveness. The student author asserts that allowing citation of unpublished dispositions "would systematically and unfairly disadvantage individual litigants with limited resources (including pro se and public-interest litigants and public defenders)." This assertedly would happen in two ways. First, citability "would increase delays in adjudication, delays from which the poorest litigants are likely to suffer the most"; second, citability "would create a less accessible class of precedents." How would citability of unpublished opinions "increase delays in adjudication"? The author's only specific claim relates not to lawyers but to judges -- "The high volume of cases makes the production of fully reasoned opinions enormously costly" -- and the author produces no evidence of the alleged link between citation and delay. Nor does the author show that any increased delays, if they existed, would be ones from which "the poorest litigants are likely to suffer the most." The author asserts that "prisoners bringing habeas claims who rely on the efficient adjudication of their cases will suffer particularly from clogged dockets." But prisoners bringing habeas claims will suffer from delay only if their claims will be successful and result in their release. The much more numerous claimants who will lose their claims may benefit from delay, because it extends their period of hope. Moreover, even if the duration of the judicial process is somewhat increased, one would think that the poorest criminal defendants or habeas petitioners -- as well as the richest ones and all others, together with their public defenders and other attorneys -- would regard that as a price well worth paying for the ability to cite an unpublished case that might set them free. The author's other claim is that citability of unpublished opinions "would create a less accessible class of precedents." He avoids saying how. The author does not deny either that the opinions would be readily searchable in Lexis, Westlaw, and other databases, or that public defenders and public-interest litigants routinely have access to these now-standard methods of legal research. (If they do not, they and their clients are at a real disadvantage in being unable to search published cases, and the existence of citable unpublished cases that they cannot search will add little to their plight.) As for pro se litigants, to remove all of their comparative disadvantages would require switching to a system of providing free legal services for all parties in civil (and habeas) cases. Because we have not done that, the additional disadvantage resulting from not having access to commercial databases to search for *36 unpublished opinions is "a drop in the bucket." Christopher J. Peters, "Adjudicative Speech and the First Amendment," 51 UCLA L.Rev. 705, 783 (2004). Boggs and Brooks have called this a claim for dumbing down the system on the model of Kurt Vonnegut's Harrison Bergeron. See Boggs and Brooks, supra, 4 Green Bag. In sum, although Judge Kozinski not only endorses the Yale student's claim but also inflates it to assert "colossal disadvantages on weak and poor litigants" (p. 37), it is hard not to conclude that this political plaint is exaggerated and misplaced. FEARS OF A CRUSHING NEW BURDEN OF RESEARCH RESULTING FROM CITABLE UNPUBLISHED OPINIONS IGNORE THE WAY LEGAL RESEARCH IS DONE TODAY Judge Kozinski claims that making unpublished opinions citable would impose a crushing new burden of research on attorneys and courts. He writes: "Once all of these cases become citable authority, lawyers will be required as a matter of professional responsibility to read them, analyze them, and figure out a way they might be helpful to their clients. All of this will take time and money, contributing greatly to the appalling rise in the cost of litigation" (p. 40). This picture of lawyers having to "read" and "analyze" the 4,000 unpublished dispositions issued by the Ninth Circuit each year -- one sees the hapless lawyer engulfed by rows of books (as in TFL's illustration that accompanied Judge Kozinski's comment) -- has little to do with the way legal research is done today. (If the fact were otherwise, it is unlikely we would see the pronounced trend toward citability that we see today in both state and federal courts.) Legal research is done today, of course, by computers. If 4,000 unpublished cases are added annually to the database, that does not mean attorneys must read or examine those 4,000 cases. Rather, it means that a given search may retrieve more cases than it did previously, and the attorney may want to limit the search terms accordingly. Any additional research time required by the presence of unpublished cases in the database should be small, if not imperceptible, and would be outweighed by the value to the client, the court, and the legal system of finding a case in point on its facts. As an example, consider New York. The intermediate appellate courts of New York decide some 12,000 cases per year -- more than twice the roughly 5,000 dispositions in the Ninth Circuit. In New York, the decisions in all those cases are accompanied by opinions (mostly "memorandum" opinions, which average about a page in the printed reports); all the decisions are published; and all are citable. How do lawyers and judges in New York survive under this supposedly crushing burden of cases to be researched? Not long ago I put this question to about a dozen lawyers, judges, and court administrators in New York. They uniformly reported that there is no problem. The people I interviewed had differing views about the ubiquitous memorandum decisions -- some finding them generally too brief to be useful in their research -- but all agreed that the memorandums are often cited and that they can be useful, "especially when the facts are right on point." No one in New York voiced any problem with the task of researching all those citable decisions. A typical comment observed that it used to be difficult to research the memorandums, before computers came along, but that now the research can easily be done online. As another example, consider Illinois. In the wake of the September 2004 hearing at which speakers unanimously favored the proposal to make written orders of the Illinois appellate court citable for persuasive value, I asked the chair of the Illinois Supreme Court's Rules Committee whether Illinois lawyers did not fear the additional burden of research they faced. The chair replied that "back in the paper age," they would have had that fear, but not with today's electronic search capability. Telephone interview with Martin J. Healy, Sept. 24, 2004; see also Barnett, supra, Daily Journal, Oct. 7, 2004. Avoidance of Inconsistency Between Federal and State Procedures Offends the Concept of National Rules and, In Any Event, Supports Rule 32.1 in Circuits Other Than the Ninth Judge Kozinski argues that adoption of Rule 32.1 "will cause inconsistency between federal and state procedures, leading to confusion among lawyers who practice in both state and federal court" (p. 41). Because "[a]ll but one of the states in our circuit (Alaska) now have some sort of noncitation rule, ... [c]hanging the federal rule in this important area will make practice more difficult and will increase the likelihood of error for the many thousands of lawyers in the Ninth Circuit who practice both in federal and state court" (p. 41). This argument is inconsistent with the fundamental concept of national rules, on which all the Federal Rules are based. As Judge Becker told the advisory committee: "The zeitgeist for the last several decades, animated by Congress as well as the Judicial Conference, is in favor of national rules. ... Law practice is national. Our sittings regularly have attorneys from New York, Chicago, California, and elsewhere; procedure is complicated enough -- they can look up a local rule but are unsure about its operation. A national rule is better." Statement of Judge Edward Becker, supra, April 13, 2004. In addition, Judge Kozinski's claim for consistency between state and federal rules in the Ninth Circuit ignores the fact that the Ninth is not the only circuit. The Second Circuit, for example, has a no-citation rule (not always followed, as we have seen). Of the states in the Second Circuit, however, New York and Connecticut freely allow citation, while Vermont allows citation for persuasive value. So, just as Judge Kozinski opposes Rule 32.1 in the name of preserving federal-state consistency in the Ninth Circuit, one might equally support Rule 32.1 in order to create federal-state consistency in the Second Circuit. (The existing inconsistency in the Second Circuit may help explain *37 the mutiny in district courts against the circuit's no-citation rule.) Similarly, if Illinois proceeds to drop its no-citation rule, the Seventh Circuit -- already closely split on the issue -- might join the nine circuits that allow citation. And if this did not happen, Judge Kozinski's argument for consistency would support Rule 32.1 in order to bring the Seventh Circuit into line with its largest constituent state. RULES BANNING CITATION OF COURT OPINIONS OFFEND BASIC VALUES OF OUR LEGAL SYSTEM AND MAY BE UNCONSTITUTIONAL Finally, and fundamentally, rules banning citation of court opinions offend basic values of our legal system. As Judge Becker put it to the advisory committee: "How can we say to members of our profession -- and remember we work for them and their clients and the public, not vice versa -- that they cannot cite to us what we have said?" No-citation rules are objectionable because, among other unfortunate consequences: . They prohibit citizens and their lawyers from seeking redress from the government by telling the government about its own actions. . They usurp the legislative role of declaring what the law is and will be (beyond the judicial function of deciding cases). . They deny equal treatment of the law to parties who are in similar situations. . They discredit the judicial system by sowing seeds of suspicion that the courts are using their power to create "secret law" that could not face the light of judicial day. Bans on citation offend all three of what Professor Schauer has identified as the values of precedent: fairness (or equality), predictability, and efficiency. See Frederick Schauer, "Precedent," 39 Stanford L. Rev. 571, 595-602 (1987). The U.S. Judicial Conference's Advisory Committee on Appellate Rules accordingly took the view that no-citation rules are "wrong as a policy matter," suggesting also that they might raise First Amendment problems. Committee Note, May 22, 2003, pp. 27, 35. Judge Kozinski in his TFL comment avoids constitutional questions (perhaps because they might come before him). In his comment to the advisory committee, however, Judge Kozinski averred that a no-citation rule "cannot conceivably be viewed as a First Amendment violation." Kozinski Comment, Jan. 16, 2004, p. 20. If the rule could be so viewed, Judge Kozinski asserts (in his TFL comment) that "the same [First Amendment] argument could be made against page limitations" (p. 42). Page limitations, however, differ from no-citation rules in both purpose and effect. They are not aimed at speech of a specific content, and they cannot -- unless they are unreasonable -- significantly hurt a party's chance to win his or her case. The significance of the First Amendment challenge to no-citation rules is suggested by Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001). The Court there struck down under the First Amendment a congressional prohibition on using Legal Services Corporation funds to challenge existing welfare law. The prohibition was held "inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for the proper resolution of the case." Id. at 545. See also, e.g., Peters, "Adjudicative Speech and the First Amendment," at 782 (no-citation rules "present the same free speech problems" as the restrictions struck down in Velasquez); Salem M. Katsch and Alex V. Chachkes, "Constitutionality of "No-Citation" Rules," 3 J.App. Prac. & Process 287 (2001); Marla Brooke Tusk, "No-Citation Rules as a Prior Restraint on Attorney Speech," 103 Colum.L.Rev. 1202 (2003). Judge Kozinski's sweeping dismissal of First Amendment claims in this context fits oddly with his usual role as one of our most stalwart judicial defenders of First Amendment values. CONCLUSION For the reasons discussed above, I argued in my comment to the advisory committee earlier this year that Rule 32.1 should be adopted. Because unpublished opinions are (or soon will be) available online in all circuits, and because nine of the 13 circuits allow citation of those opinions, I concluded that the Judicial Conference should not perpetuate conflict among the circuits on such a fundamental question. I added, however, that if the advisory committee should conclude that "opposition from one or a few circuits prevents adoption of the proposed rule at this time," it should hold the proposal in abeyance for two years. "Developments are moving so rapidly in this area, both in technology and in rule-making, by both state and federal jurisdictions, that the picture could well look different, and clearer, two years from now," I suggested. In the action it took on June 15, 2004, the standing committee did send proposed Rule 32.1 back to the advisory committee for further study, for a period expected to last about one year. The issue addressed here by Judge Kozinski's comment and my response thus may be ripe for decision again in mid-2005. [FNa1]. Stephen R. Barnett is Elizabeth J. Boalt Professor of Law Emeritus at the University of California, Berkeley (Boalt Hall). He has taught at Berkeley for more than 30 years and has served as a deputy solicitor general. He was a law clerk for Justice William J. Brennan Jr. and Judge Henry J. Friendly. The author may be contacted at barnetts@law.berkeley.edu.