Academic journal article Defense Counsel Journal

What One Hand Giveth, the Other Taketh Away

Academic journal article Defense Counsel Journal

What One Hand Giveth, the Other Taketh Away

Article excerpt

Proving that courts can change their minds, the Eighth Circuit has held that its own rule on the precedential status of unpublished opinions is unconstitutional under the judicial article of the U.S. Constitution because "it purports to confer on federal courts a power that goes beyond the `judicial."' Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).

Faye Anastasoff sought a refund of overpaid federal income taxes, but the Internal Revenue Service denied the claim as untimely, citing an Eighth Circuit unpublished opinion on point. No fair, the taxpayer replied, Eighth Circuit Rule 28A(i) states unpublished opinions are not precedent. Just look at the rule:

Unpublished opinions are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well.

The answer, according to Judge Arnold, is that the doctrine of precedent was well established and well regarded when the Constitution was adopted, and the framers of the Constitution intended that it would limit the judicial power delegated to the federal courts by Article III. …

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