Daily Archives: September 7, 2009

Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1

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“Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1″

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Adoption of the Federal Rule of Appellate Procedure 32.1 has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential. However, local rules of the Courts of Appeals are widely varied on these characteristics. The most fundamental jurisprudential question: “what is law?” has varying answers across a supposedly uniform federal system. From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.

This article, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, examines the federal judiciary’s desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions. It then categorizes and analyzes the circuits’ local rules regarding publication, citation, and precedent in the wake of Federal Rule of Appellate Procedure 32.1. Finding significant discrepancies between circuit local rules in each of these three categories, the article argues for truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.

 

Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009

Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations

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“Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations”

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Denying precedential status to unpublished opinions muddles the already unclear law surrounding qualified immunity. Government officials may claim qualified immunity as a defense to claims that they have violated a person’s civil rights. The test is whether they have violated “clearly established law.” The federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations, argues that unpublished opinions are ideal sources for determining what law is clearly established. The article reviews the purpose of both civil rights actions against government officials and the qualified immunity defense available to such officials. It also analyzes the characteristics of unpublished opinions and finds them, by definition, to be ideal sources to help determine the clearly established law. It then examines the circuit courts’ variation in the use of unpublished opinions in their qualified immunity analyses. Finally, it proposes a resolution to this problematic circuit split through jurisprudential or rulemaking means. Opinions that are issued as unpublished are by definition clearly established law; opinions that make new law or expand or contract existing law must be published under the federal circuit rules. Denying precedential status to unpublished opinions has relegated these opinions to a second class status, which is unjustified and unconstitutional, but also obfuscates their inherent suitability to demonstrate clearly established law.

 

Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009