Precedent, Judicial Power, and the Constitutionality of "No-Citation" Rules in the Federal Courts of Appeals
Laretto, Kenneth Anthony, Stanford Law Review
On April 13, 1996, Faye Anastasoff mailed a tax refund claim to the IRS. The deadline for the claim was April 15; Anastasoff believed that by mailing it before the deadline, the claim was valid. Ordinarily, she would have been right; the so-called "mailbox role" (1) provides that in most instances, a claim is timely upon receipt if it is postmarked by the original deadline. The IRS received Anastasoff's claim on April 16, and rejected it under an obscure exception to the mailbox role. (2) In the ensuing litigation, the district court rejected Anastasoffs claim that the mailbox role applied in her case. (3) On appeal to the Eighth Circuit, the government provided Anastasoff with a copy of Christie v. United States, (4) an unpublished decision involving a fact-pattern identical to Anastasoff's. The Eighth Circuit's Rule 28A(i) provides that "[u]npublished opinions are not precedent and parties generally should not cite them," although such opinions may be cited if they "[have] persuasive value on a material issue and no published opinion ... would serve as well." (5) During oral argument, Circuit Judge Richard Arnold asked Anastasoff's attorney what he thought about the Christie decision. The lawyer's response? "[Christie is] not binding on this court." (6)
The court disagreed. In Anastasoff v. United States, (7) a three-judge panel of the Eighth Circuit ruled that Rule 28A(i), a type of "no-citation" role prevalent among the U.S. Circuit Courts of Appeals, violated the Constitution by conferring a power on the federal courts in excess of the judicial power granted by Article III. (8) The decision meant that every written opinion in the circuit would henceforth have precedential effect. The Eight Circuit convened en banc to review the Anastasoff panel's decision, and vacated the ruling as moot. (9) The constitutionality of Rule 28A(i) remains an open question in the Eighth Circuit. (10)
Recently, a three-judge panel of the Ninth Circuit upheld the constitutionality of no-citation rules. In Hart v. Massanari, (11) Circuit Judge Alex Kozinski maintained that Article III does not require federal courts to treat all of their decisions as binding precedent. (12) Under his analysis, the extent to which a circuit opinion must be followed in future cases within that circuit is a matter of judicial policy, and may be determined with regard to such needs as judicial economy and the prevention of premature adjudication. (13) As both a constitutional and a practical matter, then, the status of unpublished decisions and related no-citation rules has serious implications for the judicial branch, which crafted these policies in an effort to manage burgeoning caseloads in the federal courts of appeals.
This Note discusses the problems created by no-citation rules and provides a number of potential solutions to these problems. Part I describes the history of the debate over nonpublication and no-citation rules, identifying the practical concerns that such rules seek to address and the criticisms to which those rules have been subject. Part II analyzes the constitutional holdings of Anastasoff and Hart, arguing that the text and history of Article III support a doctrine of precedent that, at the very least, gives presumptively binding effect to judicial interpretations of constitutional and statutory law. Part III identifies the authority of precedent as stemming from both the act of adjudication and the reasoning behind a decision, and argues that no-citation rules are therefore constitutionally justified as applied to decisions that are objectively non-precedential. Part IV attempts to resolve the practical and constitutional problems created by no-citation rules, by providing a number of suggestions designed to protect the availability of precedential decisions while respecting the need of judges to quickly dispose of cases having no precedential value.