From Anastasoff to Hart to West's Federal Appendix: The Ground Shifts under No-Citation Rules

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I. INTRODUCTION: A FAST-PACED YEAR

Last year's mini-symposium on unpublished opinions (1) seems to have unleashed a wave of further developments. The fast-breaking events include these:

1. Judge Richard S. Arnold's opinion for the Eighth Circuit in Anastasoff v. United States, (2) holding--until vacated as moot--that the circuit's rule denying precedential effect to unpublished opinions exceeded the Article III judicial power, has been ringingly answered by Judge Alex Kozinski's opinion for the Ninth Circuit in Hart v. Massanari. (3)

2. The American Bar Association's House of Delegates has declared that the practice of some federal circuits in "prohibiting citation to or reliance upon their unpublished opinions" is "contrary to the best interests of the public and the legal profession." (4) The ABA urges the federal appellate courts to "make their unpublished opinions available through print or electronic publications [and] publicly accessible media sites," as well as to "permit citation to relevant unpublished opinions." (5)

3. In a startling action that drains the meaning from the term "unpublished" opinion, the West Group in September 2001 launched its Federal Appendix. (6) This is a new case-reporter series in West's National Reporter System that consists entirely of "unpublished" opinions from the federal circuit courts of appeals (except, currently, the Fifth and Eleventh Circuits). (7) By late April 2002, West had published twenty-seven volumes of the Federal Appendix, averaging some 400 cases per volume, and was expecting to report some 12,000 cases per year. (8) The cases in the Federal Appendix are supplied with headnotes, indexed to West's Key Number system, garnished with the other "editorial enhancements" of West's reporting system, and christened with their own citation form: "--Fed. Appx. --." Except for its citation restrictions, (9) the Federal Appendix looks, reads, and quacks like a book of "published" case reports. If nothing else, West's action is requiring that definitions of "unpublished" be radically revised. (10)

4. The most significant move by the federal courts has come from the District of Columbia Circuit. Effective January 1, 2002, that court abandoned its no-citation rule and declared that all unpublished opinions issued on or after that date "may be cited as precedent." (11) Meanwhile, the Third Circuit has become the eleventh of the thirteen federal circuits to post its unpublished opinions online and make them available to legal publishers. (12)

5. The action by the D.C. Circuit tips the balance in the federal courts against no-citation rules. Of the thirteen circuits, there remain only five--the First, (13) Second, (14) Seventh, (15) Ninth, (16) and Federal (17)--that ban citation of unpublished opinions (except, of course, for related-case uses such as res judicata). The other eight circuits discourage citation of unpublished opinions, typically calling it "disfavored," but grudgingly allow it. They do this generally under one of two formulas--(1) that the opinions may be cited as "precedent" or for "precedential value" (the Fourth, (18) Sixth, (19) and D.C. (20) Circuits), or (2) that they are "not precedent" but may be cited for their "persuasive" value (the Fifth, (21) Eighth, (22) Tenth, (23) and Eleventh (24) Circuits). The Third Circuit, a loner, uses no formula but allows citation. (25)

The balance tips toward citability in numbers of cases as well. The citable unpublished cases from the eight territorial circuits that allow citation total some 15,000 per year, while the noncitable cases from the four territorial circuits that ban citation total about half that. (26) It should be noted, however, that the Fifth and Eleventh Circuits, which each put out more than 3,000 unpublished opinions per year, withhold those opinions from online distribution (or West's Federal Appendix), while schizophrenically allowing them to be cited. …