FED. R. APP. P. 32.1

February 13, 2006 2:05 PM

Proposed Federal Rule of Appellate Procedure 32.1. Proposed Rule 32.1 [.pdf] is an attempt to resolve a dispute in federal court practice over the propriety of citations to unpublished opinions. It is an argument that has been played out in academic papers and Circuit Courts. Judge Richard Arnold of the 8th Circuit, writing for the majority, held that local rules which declare that unpublished opinions are not precedent are unconstitutional under Article III. Anastasoff v. United States, 223 F.3d 898, 900(8th Cir. 2000), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir.2000). Judge Alex Kozinski of the 9th Circuit disagreed, holding that nonprecedential decisions are not inconsistent with the exercise of the judicial power. Hart v. Massanari, 226 F.3d 1155, 1163 (9th Cir. 2001). The proposed Rule would resolve the circuit split, but the debate rages on.
posted by dios (18 comments total)

One would think that the initial question, lexically prior to the need for this rule, would be whether there should be unpublished opinions anyhow. In my opinion, all opinions should be published. Either opinion is consistent with prior precedent---and thereby strengthening the precedential value of the point of all--or is inconsistent with prior precedent/new law on a particular fact pattern--and therefore should be published as a rule for those factual situations. The whole point of non-publication is to prevent bad law arising out of bad facts. That argument assumes Courts are unable to distinguish cases.

But if there will be unpublished opinions, than justice demands that they be able to be cited to in Courts because citizens in a society governed by the equal rule of law are entitled to equal treatment in Courts.
posted by dios at 2:15 PM on February 13, 2006

Awesome post, and RIP, Judge Richard.
posted by amber_dale at 2:20 PM on February 13, 2006

As a lawyer, I have always hated the no-citation rules. It is ridiculous to be able to cite a federal trial court decision or a state court decision, whether published or "unpublished" (whatever that really means these days since everything is online), but not an unpublished circuit decision. Even if it's not considered binding precedent, it's as or more relevant as any other authority a federal appellate court might consider.
posted by brain_drain at 2:20 PM on February 13, 2006

Part of the reason unpublished citations exist at all is because of the massive case load handled by the federal judiciary. You can review the overall statistics for 2005 here. The 5th Circuit last year handled a total of 9,052 appeals. Judges on the federal appeals court sit in three judge panels, and in the 5th Circuit last year, each three judge panel handled an average of 1,597 cases. That's a staggering amount of work, and there are not a lot of people to help get it all done. Creating a rule that allows lawyers to cite these unpublished opinions puts even more pressure on the judges deciding these cases. Judge Kozinski explained in his testimony to the Judicial Conference why it's perfectly appropriate, and indeed, necessary to have unpublished dispositions, and moreover, why allowing citation is counterproductive.

I don't think citation to unpublished opinions is very helpful. It's very rare for a court to change or expand an existing rule of law in an unpublished opinion; indeed, it goes against the purpose of classifying the opinion as not for publication. Most often, when lawyers find that they must rely on unpublished opinions to try and make their argument, they are misconstruing the rules of law announced and applied in those cases.

Also, a procedural point. The Judicial Conference proposed additions and modifications to the Federal Rules of Appellate Procedure, which must eventually be approved by the Supreme Court. The two newest members, Chief Justice Roberts and Justice Alito, have both come out in favor of the proposed rule.
posted by monju_bosatsu at 2:23 PM on February 13, 2006

Pat Schiltz has an interesting article on the topic. He's the Reporter to the Advisory Committee, and although he initially opposed the proposed rule, he now favors it.
posted by monju_bosatsu at 2:26 PM on February 13, 2006

Let's throw a wrench in the system and look if it turns like Serbia, is that what some people think ?
posted by elpapacito at 2:28 PM on February 13, 2006

Thing is, if the judges are not comfortable publishing because they feel they don't have enough time to write a reasoned opinion, why not just do a per curiam "affirmed" and adopt the district court's reasoning where appropriate?

Some appeals are meritless and not every case requires a 15 page opinion. Too often, though, you end up with 15 pages of "unpublished" commentary.
posted by Mid at 2:31 PM on February 13, 2006

I don't buy the workload argument. The opinions are written already. And they are published in the reporters, although they are not designated for publication. So what you are arguing is that the opinions are written well enough to be judicial opinions, but not well enough for another Court to consider them? That they haven't rule based on sufficient analysis? That dog doesn't hunt. Maybe they should hire more law clerks or get one's that aren't lazy.

I'm fine if a judge doesn't want to write an opinion. I'm fine if they want to write a very limited bare bones opinion that wouldn't be useful as a precedential tool. But when they take the time to write an opinion, there is no reason for them to prevent its official publication.

And since they are available, they should be cite-able. Judges (and the advocates and clerks and briefing attorneys) should be competent enough to distinguish a case and determine if a prior opinion should be binding.
posted by dios at 2:34 PM on February 13, 2006

Maybe they should hire more law clerks or get one's that aren't lazy.

Hey, I resemble that remark! Seriously, though, I think you underestimate the difference in the time spent between published and unpublished opinions. As Judge Kozinski explains:

A published opinion must set forth the facts in sufficient detail so lawyers and judges unfamiliar with the case can understand the question presented. At the same time, it must omit irrelevant facts that could form a spurious ground for distinguishing the opinion. The legal discussion must be focused enough to dispose of the case at hand, yet broad enough to provide useful guidance in future cases. Because we normally write opinions where the law is unclear, we must explain why we are adopting one rule while rejecting others. We must also make sure that the new rule does not conflict with precedent, or sweep beyond the questions fairly presented.

While an unpublished disposition can often be prepared in only a few hours, an opinion generally takes many days (often weeks, sometimes months) of drafting, editing, polishing and revising. Frequently, this process brings to light new issues, calling for further research, which may sometimes send the author all the way back to square one. In short, writing an opinion is a tough, delicate, exacting, time-consuming process. Circuit judges devote something like half their time, and half the time of their clerks, to cases in which they write opinions, dissents or concurrences. (Attached as an exhibit is an article titled How To Write It Right by Fred Bernstein, one of my former law clerks. Fred discusses how it’s not unusual to go through 70-80 drafts of an opinion over a span of several months.)

Once an opinion is circulated, the other judges on the panel and their clerks scrutinize it very closely. Often they suggest modifications, deletions or additions. Judges frequently exchange lengthy inter-chambers memoranda about a proposed opinion. Sometimes, differences can’t be ironed out, precipitating a concurrence or dissent. By contrast, the phrasing (as opposed to the result) of an unpublished disposition is given relatively little scrutiny by the other chambers; dissents and concurrences are rare.

The difference between the two kinds of opinions are enormous. I agree, though, with the point that judges shouldn't write lengthy opinions if they're going to designate them as unpublished. The truth is that most unpublished dispositions are very short, rarely more than a couple of pages.

Keep in mind, too, that most appeals do not present novel applications of the law. In most cases, the relevant rule of law is settled and has been applied in similar factual context. In those cases, there is rarely a need for a lengthy discussion of the law when a brief description and citation will do. Why publish those? Indeed, that reality is reflected in the structure of the court's docket. The court has a summary calendar and an oral argument calendar. The summary calendar cases, often called "screeners," are straightforward cases that can often be resolved with a couple of hours worth of research and writing. The initiating judge will draft a proposed opinion and circulate it to the other judges without any need for oral argument from the parties. Even on the oral argument calendar, reserved generally for more complex or unsettled cases, some cases are designated NOA--no oral argument--because they may be slightly more complicated than the screeners, but don't need any argument from the parties.

And since they are available, they should be cite-able. Judges (and the advocates and clerks and briefing attorneys) should be competent enough to distinguish a case and determine if a prior opinion should be binding.

Again, why? Sure, these opinions are all available on Westlaw and Lexis, so it's not like there's some system of secret judging. Instead, these are opinions that the judges have determined in advance do not modify existing legal rules. As a result, it makes it easier for the court to decide future cases without lawyers arguing about the imagined impact of some unpublished opinion on the state of the law. Think of it as an additional docket control device.
posted by monju_bosatsu at 2:48 PM on February 13, 2006

Thank you all. Many years ago while making decisions as to which career path to take the law was one not chosen. While there has been many times to ponder the wisdom on the one taken this thread in a very short time reaffirmed the wisdom to the not taken choice. You guys make my head hurt.
posted by mss at 3:45 PM on February 13, 2006

You're all just trying to draw the Cheney fire away from the rest of us right?
posted by srboisvert at 3:47 PM on February 13, 2006

You're all just trying to draw the Cheney fire away from the rest of us right?

Well, he did say the dog doesn't hunt ;)

*goes back to letting lawyers talk lawyer talk*
posted by terrapin at 4:32 PM on February 13, 2006

get a blog!
posted by zaelic at 4:51 PM on February 13, 2006

Unpublished opinions exist only to give the interested parties some idea of why the decision was made one way or another. They are not written to create new precedent but rather to explain how precedent applied in the current case to winner and loser.
If unpubs become citable judges will simply rule with no explanation, which creates a different problems for the interested parties.
posted by johngumbo at 6:12 PM on February 13, 2006

What monju and johngumbo said.

Just to reiterate, the problem isn't lazy law clerks, it's lazy associates. 9 times out of 10 you can make the argument well with published opinions - so just stick with them instead of pining for an unpub that's a better match for your facts.
posted by newscouch at 9:35 AM on February 14, 2006

I would just add that unpublished opinions frequently concern last-ditch requests for extraordinary relief under which the burden is extremely high. For example, a deportee might argue that the immigration court shouldn't have denied his motion to reconsider, or a victim of employment discrimination will argue for equitable tolling of her statute of limitations. The lawyer is ethically bound to pursue all nonfrivolous means to secure relief on behalf of his client, and the very existence of such extraordinary remedies mean that such appeals aren't frivolous. In this case, the appellate opinion reads like a statement of the facts, a recitation of the applicable legal standard, and a conclusion that the facts don't meet this standard. There is no reason to publish these, since neither the plaintiff nor the defendant would ever want to cite them.
posted by Saucy Intruder at 6:23 PM on February 14, 2006

Lawyers should like unpublished opinions. Sure, you can't cite them, but you can take logic and arguments straight out of them, using the cases they cite in the same way that the court used them. They can act as a great guide to how the court is thinking about the issues and what sort of arguments based on published opinions they'll consider valid.
posted by JekPorkins at 6:39 PM on February 14, 2006

To my lay mind, it seems like this says law is developed like software, in that a "beta" version is circulated in the unpublished format, and once everyone's had a chance to pick it apart, someone who needs it or has a serious interest publishes it with all the supporting docs. Very interesting, thanks.
posted by atchafalaya at 1:19 PM on February 16, 2006