In April, the Supreme Court blessedly adopted a rule change permitting the citation of unpublished opinions, effective December 1st. Here is an article about it by Tony Mauro:
The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1.
The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. In some circuits these dispositions have no precedential value and cannot be cited.
"Unpublished" is a misnomer, since most of these opinions are available now on legal databases. But some federal judges have argued that if this category of opinions can be cited and used as precedent, they will take more time to decide and write, sharply increasing the backlog of cases. Many sentencing appeals, for example, are resolved by unpublished opinions. The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it.
Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them -- in the same way lawyers cite rulings from other circuits or other authorities, such as law review articles.
"This change will facilitate lawyers' representation of their clients, and it will facilitate the courts' informed decision of future cases," said Mark Levy of Kilpatrick Stockton, a member of an advisory committee that recommended the change. "It will also bring national uniformity to the process."
At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys. He added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."
The committee Kozinski was referring to, the Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-3rd Circuit Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Roberts Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, Wednesday's vote may have been unsurprising. There was no indication in the Court's order whether any justices dissented or did not participate.
The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment in the rule change it promulgated Wednesday.
Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges. Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.
Judge Kozinski's comments are rather striking: the opinion is binding on the parties no matter who writes it. Moreover, Judge Kozinski infers that law clerks don't write published opinions. There have been examples in copyright cases where courts of appeals have issued opinions containing important legal points. Most recently, in Universal Furniture International, Inc. v. Collezione Europa USA, Inc. (No. 06-1144, 4th Cir. Aug. 29, 2006), the Fourth Circuit issued a 15 page opinion after oral argument that reviewed a number of significant issues, including the presumption of irreparable harm for injunctions, conceptual separability, and compilation copyrights. The court properly couched much of its discussion on whether the district court abused its discretion on the record presented, but there is still material of general applicability on standards and disagreements with other cicuits. More to the point, there is no reason why the opinion should not be cited.