Academic journal article Harvard Journal of Law & Public Policy

Anastasoff, Unpublished Opinions, and Federal Appellate Justice

Academic journal article Harvard Journal of Law & Public Policy

Anastasoff, Unpublished Opinions, and Federal Appellate Justice

Article excerpt

In Anastasoff v. United States, (1) a three-judge panel of the United States Court of Appeals for the Eighth Circuit recently invalidated the court's local rule of appellate procedure providing that "unpublished opinions are not precedent and parties generally should not cite them." (2) Eighth Circuit Judge Richard S. Arnold authored the opinion, holding that this local requirement violates Article III of the United States Constitution. Regardless of whether the provocative decision in Anastasoff is constitutionally sound, the opinion trenchantly emphasizes the critical significance of a public policy issue that has remained essentially untreated for too long.

Judge Arnold's Anastasoff opinion perceptively identifies the substantial complications created by burgeoning caseloads and the static resources available to resolve these appeals. It cogently admonishes that the federal judicial system is in serious difficulty if the volume of appellate filings and temporal restraints preclude the circuit bench from attributing precedential value to each case. Judge Arnold concomitantly rejects the proposition that deficient resources prevent judges from according all appeals precedential effect. He also repudiates the notion that appellate courts are currently developing an underground corpus of law that applies only to the litigants in a particular case. Instead, he argues that there must be sufficient resources to address mounting caseloads adequately, and if these funds are unavailable, every judge must devote the requisite time to treat each of the filings competently, even if backlogs increase.

The three-judge panel, thus, threw down the constitutional gauntlet by invalidating the Eighth Circuit local rule while most other appellate courts continue to enforce analogous provisions. Evaluating the threat to the delivery of appellate justice posed by these local requirements as discussed in the Anastasoff opinion, however, is more important. This Comment also seeks to explore the most promising solutions to that pressing legal and public policy problem.

Part I of this Comment, therefore, traces the problem of a historical growth in caseloads without a corresponding rise in resources as addressed by the Eighth Circuit decision. Part II evaluates the Anastasoff holding and its implications. Increasing appeals, scarce resources, and the restrictions imposed by procedures like the Eighth Circuit local rule may well jeopardize modern appellate justice, as Judge Arnold's opinion eloquently demonstrates. Part III then presents recommendations for addressing this situation. It analyzes remedies that might solve or at least ameliorate these problems at the appellate level, principally through reductions in the volume of cases that attorneys and parties consider filing and, should this possibility prove deficient, measures that would respond directly to those appeals actually pursued in a prompt, inexpensive, and fair manner.


The problem of expanding appellate caseloads, scarce resources, and increased reliance on unpublished opinions has received thorough examination by legal scholars. (3) The quantity of appeals from federal district court decisions has increased steadily since the 1970s. (4) Congress has partially addressed this expansion by committing more resources to the federal appellate judiciary, but its effort has been insufficient and may have even imposed various disadvantages. For instance, lawmakers have authorized additional active appellate court judgeships, but the number of new judicial positions has apparently failed to keep pace with exponential docket growth and might have actually contributed to the erosion of judicial collegiality and consistent decisionmaking. Congress has simultaneously enlarged the courts' administrative staff and their responsibilities, although this expansion may have aggravated the bureaucratic nature of the appellate justice system. …

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