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

“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has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential.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 From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.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desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions.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truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.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

Writing the book on citing unpublished and non-precedential opinions

Today’s mail brought Volume 10, Issue # 1 (Spring 2009) of The Journal of Appellate Practice and Procedure.  This issue contains Professor David R. Cleveland’s book-length (116 pages) article “Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions.”

The Foreword to the issue notes that “Professor Cleveland’s article about Rule 32.1 follows both Judge Arnold’s famous comment about unpublished opinions, which ran in our second issue, and the series of Anastasoff-related articles that appeared in our Volume 3, Issue 1.”

Professor’s Cleveland first posted this piece to the Legal Scholarship Network as a working paper, which can be found here, with this abstract:

In the mid-1970s, the federal judiciary fundamentally changed the nature of precedent in the United States federal courts. It did so quickly and quietly: first, by issuing decisions as unpublished and not citeable, and then, by denying these decisions precedential status. Every opinion issued in this fashion deprives the law of a valuable precedent and ignores common legal conceptions of how our law works. While the recently enacted Federal Rule of Appellate Procedure 32.1 restores the ability to cite to these decisions, it does nothing to address the more critical issue of whether these decisions can be denied precedential weight, and even if so, whether they ought to be denied such value. This Article advocates a return to full precedential status for all federal court decisions based on Constitutional and community-based principles. Publication limits and citation bans have fallen away in light of modern technology and jurisprudential concerns. The related practice of issuing non-precedential opinions should likewise be ended. The practice is outdated at best and constitutionally infirm at worst. Moreover, it flies in the face of American legal and lay concepts of how our justice system works. Quite simply, the federal courts ought to recognize that they are bound by what they have done in the past and that they must apply, distinguish, or overrule those precedents rather than simply ignoring them.

The article’s table of contents shows the wide range of coverage Professor Cleveland gives to his topic:

I. Background

II. Introduction

III. History of Publication and Precedent

   A. Ancient Publication and Precedent

   B. Early English Publication and Precedent

   C. Modern English Publication and Precedent

   D. Early American Publication and Precedent

IV. Modern American Publication and Precedent

   A. Comprehensive Publication and the Concern It Engenders

   B. The Birth of Limited Publication Plans

   C. Recent Technological Developments in Publication

   D. Citation and Precedent in the Federal Courts of Appeals Prior to Rule 32.1

   E. Rule 32.1

V. The Debate Over Precedential Status of Unpublished Decisions

   A. Criticisms of the Premises of Limited Publication, Citation and Precedent

   B. Premises Supporting the Prevention of Comprehensive Publication

   C. Premises Supporting a Bar on Citation to Unpublished Decisions

   D. Premises Supporting the Denial of Precedential Status to Unpublished Decisions

VI. Current Status of the Article III Debate

   A. Equal Protection

   B. Due Process

   C. Pragmatic Objections to Precedential and Proposed Solutions

VII. Conclusion

And here’s the conclusion:

     Whether by constitutional case decision or by the adoption of a new Federal Rule of Appellate Procedure, the practice of issuing non-precedential opinions should be ended.  Failure to recognize every decision as precedential represents and perpetuates a serious problem in our judicial system because the practice conflicts with both our constitutional and community values.

     Evidence suggests that unpublished opinions are already published.  They have long been researched despite the rules against their citation, and they are now fully citeable under Rule 32.1.  Unpublished decisions are already being published, researched, and cited because they are perceived to have precedential value within our legal system.  This value should be recognized rather than denied.

     The Supreme Court has aptly cautioned in another content that ‘[l]iberty finds no refuge in a jurisprudence of doubt.” [footnote omitted]  Yet  for over three decades, the federal courts’ policy of creating “non-precedential precedents” [footnote omitted] has increasingly fostered a jurisprudence of doubt.  After three decades of limiting the publication, citation, and precedential effect of their opinions, federal courts are still carefully avoiding the “morass of jurisprudence” [footnote omitted] involved in closely examining the precedential status of unpublished opinions.  However, the winds have changed.

     The limitation of publication now exists in name only.  The limitation of citation has been removed by Rule 32.1.  The limitation on full precedential status for all decisions of the federal courts of appeals, initially instituted to help realizer the gains believed to flow from the other two limitations, is the last remaining vestige of a flawed and failed experiment.  The practice of deciding ex ante which cases join the body of precedent and while do not should be abandoned.  Both the dictates of American constitutional law and the traditions of the American legal community require it.

 

A related article by Professor Cleveland, “Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System,” was noted here.

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Marquette Law Review, Vol. 92, 2009
NSU Shepard Broad Law Center Research Paper No. 08-012

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

 

Unpublished opinions have become a fact of life in the federal circuit courts. Over eighty percent of all opinions issued by the federal circuits in the last few years have been designated “unpublished.” The meaning of that designation has changed, however, since the birth of the limited publication plans. In the mid-1970s, the federal circuits adopted plans that sought to make some of their decisions unpublished, uncitable, and even non-precedent. That system has unraveled. Unpublished decisions are now routinely published in both commercial and public databases. Federal Rule of Appellate Procedure 32.1 now makes these decisions citeable. What remains is the most critical issue – whether denying these decisions’ precedential weight is Constitutional. This issue was never addressed directly when the circuits’ limited citation plans were put into place; it was viewed as a “morass of jurisprudence” that was better off avoided. Yet, several potential Constitutional infirmities with the practice of declaring some opinions non-precedential have been identified. This is ultimately an issue to be determined by the Supreme Court.

This article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, examines the Supreme Court jurisprudence on this issue. It examines what the Court has ruled, what petitioners have argued, and what individual Justices have stated in scholarly writings and separately written opinions. The Court has never accepted the circuits’ assertion that these cases lack precedential value, but neither have they granted certiorari and addressed the issue directly. The Constitutionality of denying unpublished decisions precedential value is ripe for Supreme Court review. Given the fundamental nature of the issue, litigants ought to vigorously seek certiorari and the Court should grant it.

 

Source:  LSN Law & Courts Vol. 2 No. 55,  09/29/2008

The Ethical Conundrums of Unpublished Opinions

Here’s a new, all-you-ever-wanted-to-know plus more article about unpublished/depublished/non precedential/etc. decisions:

“The Ethical Conundrums of Unpublished Opinions”

Shenoa L. Payne

44 Willamette Law Review 723-760 (2008 )

INTRODUCTION

I. BACKGROUND AND HISTORY OF UNPUBLISHED OPINIONS

   A. The Emergence of Unpublished Opinions

   B. The Original Justifications for No-Citation Rules

   C. The Electronic Availability of Unpublished Opinions

   D. The Debate over No-Citation Rules: The Loud Roar from the Eight Circuit

   E. The Treatment of Unpublished Opinions by State Courts and Federal Circuits

II. DEPUBLISHED OPINIONS: WHEN DECISIONS MOVE FROM PRECEDENT TO SECRET

   A. The Depublication Process in the California Courts

   B.  The Changing the Message Behind Depublicaton

   C.  The Criticisms of Depublication

   D.  The Counterarguments

   E.  The Alternatives to Depublication

   F.  The Responsibilities of Lawyers Regarding Depublication and Precedent

III. FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A REAL CHANGE?

   A.  Background

      1. The Value of Unpublished Opinions

      2. The Necessity of Unpublished Opinions for Busy Courts

      3. The Increased Costs of Legal Representation

   B. The Text of Federal Rule of Appellate Procedure 32.1

   C. Is Federal Rule of Appellate Procedure 32.1 a Real Change?

IV. COURTS SHOULD BE REQUIRED TO GIVE UNPUBLISHED OPINIONS THE RESPECT THEY ARE OWED.

   A. Skidmore v. Swift & Co.

   B.  Considerations that Give an Unpublished Opinion “Power to Persude,” if not “Power to Control”

      1. Factually Indistinguishable Cases

      2. Issued by the Same or a Controlling Court

      3. Concerns a Unique Question of Law or Fact

      4. Possesses Other Factors that Give it Power to Persuade, if not Power to Control

   C. The Goal of Uniformity

   D. Guidance for Attorneys

   E. Judicial Accountability and Judicial Efficiency Concerns: A Good Balance

V. SOME PRACTICAL IMPLICATIONS

   A. Why Do Attorneys Want to Use Unpublished Opinions?

   B. Can Attorneys Provide Competent Representation Under No-Citation Rules?

   C. Are Attorneys Able to Provide Diligent Representation in the Face of No-Citation Rules?

   D. Can an Attorney Argue Points Based on Unpublished Opinions Without Bringing a Frivolous Claim?

   E. Does an Attorney Ethically Have to Cite an Unpublished Opinion Contrary to His or Her Position in   Jurisdictions Where No-Citation Rules are Banned?

   F. Is Ignoring Unpublished Opinions in Criminal Cases a Violation of the Constitution?

CONCLUSION

With the availability of unpublished opinions, the original reasons for no-citation rules no longer justify their continued existence. In the face of a long and heated debate, FRAP 32.1 is a step  toward appropriately addressing the problems associated with unpublished opinions. Citation to unpublished opinions is extremely important. However, FRAP 32.1 is extremely limited and allows unpublished opinions only to reach the very bottom tier of precedent, which does not require courts to give unpublished opinions any particular weight.

Courts should employ a uniform rule requiring a Skidmore type deference that gives unpublished opinions respect when due based on four factors: (1) if the facts are indistinguishable; (2) if the unpublished opinion is issued in the same or a controlling court; (3) if the opinion addresses a unique question of law or fact not addressed in published opinions; and (4) all those other factors which give it power to persuade, if lacking power to control. Such a rule would bring uniformity to the treatment of unpublished opinions across federal circuits, give strong guidance to attorneys in assessing their cases, and balance the concerns of judicial efficiency and judicial accountability.

Attorneys face real ethical conundrums even though FRAP 32.1 has prohibited no-citation rules in federal circuits. Attorneys are still bound to (1) local federal rules for unpublished opinions issued prior to January 1, 2007 and (2) the rules of the state courts in which they practice. This means that attorneys must carefully consider their ethical duties of competence, diligence, candor toward the tribunal, the appearance of frivolous claims, and also consider whether they are violating their duties of effective assistance of counsel owed to criminal defendants. Until a uniform rule is in place, such as requiring a Skidmore type deference, attorneys will continue to face challenging ethical conundrums in relation to unpublished opinions.