Academic journal article Journal of Appellate Practice and Process

Appellate Court Rules Governing Publication, Citation, and Precedential Value of Opinions: An Update

Academic journal article Journal of Appellate Practice and Process

Appellate Court Rules Governing Publication, Citation, and Precedential Value of Opinions: An Update

Article excerpt

INTRODUCTION

In the mid-1970s, the federal courts of appeals began to issue opinions designated "unpublished" that were not typically published, citable, or accorded any precedential value. Many states followed suit. A great debate ensued questioning the practice, which has consumed considerable academic attention and appellate rulemaking time. (1) States continue to vary in their treatment of unpublished opinions and even in the wake of Federal Rule of Appellate Procedure 32.1, intended to provide uniformity, the federal circuits remain inconsistent. (2)

Scholars, judges, and practitioners have found previous surveys of practice regarding these opinions useful. (3) The authors of those early studies noted a trend toward increased citability, even between 2001 and 2004. This increase in citability continues, and increasingly, states are according all decisions precedential value or no longer issuing opinions designated as either "unpublished" or "non-precedential." More than half the states now either permit citation of, or do not issue, unpublished opinions. Since the last major survey in 2004, seven additional states--Alaska, Hawaii, Kansas, New Mexico, North Carolina, Pennsylvania, and Wisconsin--have begun to permit citation of unpublished opinions, and one--Louisiana--has accorded precedential value to unpublished opinions. Five additional states--Arkansas, Ohio, Texas, Utah, and Wyoming--have stopped issuing unpublished appellate opinions.

Earlier surveys, much like earlier debate on the issue, tended to look only at publication and citation practices. (4) This survey seeks not only to update the information on these issues, but also to provide information about various jurisdictions' rules on the precedential value accorded to decisions. The charts that follow, like those in prior surveys, attempt to convey the essence of each jurisdiction's rules. The goal is to provide a quick reference to the rules from each jurisdiction and a source for comparison of jurisdictions. The survey describes the rules from each jurisdiction as written, but readers should remember that the extent to which courts fastidiously follow them may vary. (5) And, of course, this area of law continues to develop, largely in the direction of greater official publication and citation. (6)

David R. Cleveland, Professor of Law, Valparaiso University. Professor Cleveland is grateful to Alyssa Spartz for her excellent research assistance. Additionally, Professor Cleveland would like to thank Michael Schmier, whose inquiry into the current state of publication rules nationwide led to the realization that there was no recent survey of state practices.

(1.) David R. Cleveland, Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. APP. PRAC. & PROCESS 61, 62 n.5 (2009) (collecting law review articles); Patrick J. Schiltz, Much Ado About Little: Explaining the Sturm und Drang Over the Citation of Unpublished Opinions, 62 Wash. & Lee L. Rev. 1429, 1429-30 (2005) ("On the day that I became Reporter, the issue of unpublished opinions was the most controversial issue on the Advisory Committee's agenda. Eight years later, the issue of unpublished opinions continues to be the most controversial issue on the Advisory Committee's agenda. I have devoted more attention to the unpublished-opinions issue than to all of the other issues the Advisory Committee has faced--combined.")

(2.) David R. Cleveland, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, 11 J. App. Prac. & PROCESS 19, 19-20 (2010). This article remains an accurate survey of federal rules on these issues.

(3.) Two that appeared in early issues of this journal are particularly valuable. See Melissa M. Serfass & Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions: An Update, 6 J. APP. PRAC. & PROCESS 349 (2004) [hereinafter Serfass-Cranford Update]', Melissa M. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.