Academic journal article Journal of Appellate Practice and Process

No-Citation Rules under Siege: A Battlefield Report and Analysis

Academic journal article Journal of Appellate Practice and Process

No-Citation Rules under Siege: A Battlefield Report and Analysis

Article excerpt

"The assault upon the citadel of no-citation rules is proceeding in these days apace." Cardozo didn't exactly say that, (1) but if he were here today, he might. "Unpublished" (2) judicial opinions and rules prohibiting their citation are under attack on several fronts. I report here on three of those venues: (1) the federal circuit courts of appeals, (2) the states, and (3) the rulemaking process of the federal judiciary. Each has seen important developments recently. The federal rulemakers, for their part, currently are receiving public comments on a major proposed new rule, one that presents significant questions of drafting as well as of policy.


Among the individual federal circuit courts of appeals, the major news is from the First Circuit. Effective in December 2002, that court dropped its rule that allowed citation of unpublished opinions only in "related cases." (3) The First Circuit adopted instead a rule cautioning that "[c]itation of an unpublished opinion of this court is disfavored," but allowing such citation "if (1) the party believes that the opinion persuasively addresses a material issue in the appeal; and (2) there is no published opinion from this court that adequately addresses the issue." (4) Further, "[t]he court will consider such opinions for their persuasive value but not as binding precedent." (5)

Grudging as the language may be, this move by the First Circuit, coming a year after a similar turnabout by the District of Columbia Circuit, (6) means that nine of the thirteen circuits now allow citation of their unpublished opinions. The circuits permitting citation are the First, (7) Third, (8) Fourth, (9) Fifth, (10) Sixth, (11) Eighth, (12) Tenth, (13) Eleventh, (14) and D.C. (15) Circuits. Those still forbidding citation are the Second, (16) Seventh, (17) Ninth, (18) and Federal (19) Circuits. Nine of thirteen is a substantial majority; citability of unpublished opinions thus comes close to being the norm in the federal circuits today. (20)

In another federal court development, the Fifth Circuit, which already allowed its unpublished opinions to be cited, in July 2003 broke down and joined all but one of the other circuits in putting those opinions online at the court's website. (21) That leaves the Eleventh Circuit as the last holdout refusing to put its unpublished opinions online. This will have to change in two years, when the E-Government Act of 2002 (22) takes effect. That Act requires each circuit to maintain a website affording access--in a "text searchable format"--to "all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter." (23)


A. The Serfass-Cranford Findings and Judge Kozinski's Testimony

It may not have attracted much attention, but there is a lot going on in the states. State activity with respect to citation of unpublished opinions tends to draw little national notice; not only are there some four times as many states as federal circuits to take into account, but the states differ in their court systems and in the kinds of "opinions" their courts issue. Some states have no intermediate appellate courts, and hence, no unpublished opinions of those courts. In some states, the supreme court issues unpublished opinions. Some states have no unpublished opinions but do have unpublished dispositions without opinion. Further, a state's "rule" with respect to citing unpublished opinions may not be easy to find, existing as it sometimes does in caselaw (not always clear and consistent) or even in custom.

Merely to collect, let alone to classify and compare, the rules of all the states is therefore a substantial undertaking. Pioneers in the task were Melissa M. Serfass and Jessie L. Cranford, who reported their results in this Journal in 2001. (24) In June 2002, the Serfass-Cranford study was relied on by Judge Alex Kozinski of the Ninth Circuit in testimony he gave before a subcommittee of the House Judiciary Committee. …

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