Court Endorses Use of Unpublished
The Supreme Court on Wednesday adopted a historic rule change that will allow
lawyers to cite so-called unpublished opinions in federal courts starting next
year. The new rule takes effect unless Congress countermands it before Dec. 1.
The justices’ vote represents a major milestone in the long-running debate
over unpublished opinions, the sometimes-cursory dispositions that resolve
upward of 80 percent of cases in federal appeals courts nationwide. In some
circuits these dispositions have no precedential value and cannot be cited.
“Unpublished” is a misnomer, since most of these opinions are available now
on legal databases. But some federal judges have argued that if this category of
opinions can be cited and used as precedent, they will take more time to decide
and write, sharply increasing the backlog of cases. Many sentencing appeals, for
example, are resolved by unpublished opinions. The U.S. Courts of Appeals for
the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions
outright, while six other circuits discourage it.
Under the new rule, circuits will still be able to give varying precedential
weight to unpublished opinions, but they can no longer keep lawyers from citing
them — in the same way lawyers cite rulings from other circuits or other
authorities, such as law review articles.
“This change will facilitate lawyers’ representation of their clients, and
it will facilitate the courts’ informed decision of future cases,” said Mark
Levy of Kilpatrick Stockton, a member of an advisory committee that recommended
the change. “It will also bring national uniformity to the process.”
At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading
opponent of the rule change, said unpublished opinions were so designated for a
reason: They are drafted “entirely” by law clerks and staff attorneys. He
added, “When the people making the sausage tell you it’s not safe for human
consumption, it seems strange indeed to have a committee in Washington tell
people to go ahead and eat it anyway.”
The committee Kozinski was referring to, the Advisory Committee on the Federal
Rules of Appellate Procedure, was chaired at the time by then-3rd Circuit Judge
Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John
Roberts Jr. Both supported the change while on the committee, and now that both
serve on the Supreme Court, Wednesday’s vote may have been unsurprising. There
was no indication in the Court’s order whether any justices dissented or did
The advisory committee’s original recommendation was to allow the citation of
all unpublished opinions, past and future, but the Judicial
Conference last September added an amendment to make the rule
prospective, allowing the citation only of those rulings issued on or after next
Jan. 1. The high court adopted that amendment in the rule change it promulgated
Unpublished opinions first came into vogue in the 1960s as a time-saving device
for appellate judges. Though the propriety of an essentially secret judicial
process has been debated for years, the catalyst for change came in 2000, when
the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping
unpublished opinions of precedential value was unconstitutional because it gave
judges a power not authorized by Article III of the Constitution.
Tony Mauro can be contacted at firstname.lastname@example.org.
©2006 Legal Times Online