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special to the national law journal David R. Fine is a partner in the Harrisburg, Pa., office of Kirkpatrick & Lockhart. If you’re filing a brief in the 7th U.S. Circuit Court of Appeals, it’s safer to cite an article by Russian journalist Vladimir Posner than most of the opinions written by Judge Richard A. Posner. Likewise, the 9th Circuit, where the creative (if misguided) advocate could cite Unabomber Theodore Kaczynski’s “manifesto” as persuasive authority, had best leave out a majority of the opinions by Circuit Judge Alex Kozinski. The reason: Those courts, like many of the federal courts of appeals, designate a majority of their opinions as “nonprecedential” and local rules then bar their citation for almost any purpose. Many appellate judges argue that such local rules are necessary because their courts simply have too many cases for them to resolve each one with a carefully crafted opinion that warrants treatment as precedent. The judges explain that some cases are sufficiently garden-variety that they can be handled with shorter opinions that don’t require the sort of care attendant to published opinions. Such opinions, the judges tell us, are sufficient to resolve the dispute between the parties but not to serve as precedent to bind subsequent panels of the court or the circuit’s district courts. Three proposals Many have challenged that rationale and have argued that any opinion rendered by an appellate court should be considered a precedent to which lawyers may cite. As a result of such questions, the advisory committee that drafts proposed amendments to the Federal Rules of Appellate Procedure now has before it a proposal to bring uniformity to the local rules that govern citation to such “nonprecedential” opinions and to allow greater use of those opinions. The committee will meet this week to consider three proposals to add a Federal Rule of Appellate Procedure 32.1: Alternative A allows courts to designate opinions “nonprecedential,” but allows citation to those opinions for their persuasive value, as well as for claim or issue preclusion, double jeopardy, law of the case or similar arguments. This proposal forbids courts from imposing any restriction on citation to “nonprecedential” opinions that they do not generally impose on citation of other sources. Alternative B is much the same as Alternative A, except that it does not specifically allow courts to designate opinions as “nonprecedential.” Alternative C differs from Alter-native B in that it allows citation to “nonprecedential” opinions as persuasive authority on a material issue, so long as there is no “precedential” opinion of the circuit on that issue. It also notes that citation to such opinions is “disfavored.” Alternative C resembles a proposal made by the U.S. Department of Justice. Begging the question None of the alternatives goes far enough, and each misses the real issue. Each assumes that it is proper to relegate an appellate opinion-no matter how close its facts might be to those of the case in which it is to be cited-to mere persuasive value. Until fairly recently, it was a given that all appellate decisions were precedential and formed part of the tapestry of the law. The fact that even the most expansive of the three pending proposals allows wholesale use of “nonprecedential” opinions and then limits them to mere persuasive value is a sign of how much the judiciary is now influenced by considerations of expediency and docket control. In a more cynical sense, there is also the danger that judges could use the “nonprecedential” label for opinions that might otherwise create controversy, departures from circuit precedent or splits with other circuits. The result, were that to occur, could be unequal application of the law from one case to another. That said, the appellate rules committee has before it only these three alternatives, and there seems to be little hope for the sort of wholesale reform there should be: a simple, national rule that allows litigants to cite any appellate opinion as binding precedent. Appellate lawyers should, therefore, press the rules committee for the next best thing: Alternative B. Alternative A seems to invite courts to designate opinions “nonprecedential.” Alternative C micromanages by warning litigants that reference to “nonprecedential” opinions is “disfavored” and that they may do so only if there is no binding precedent on the issue. No lawyer should have to be told that binding authority trumps persuasive authority, and any lawyer who would cite a “nonprecedential” opinion when there is a precedential decision on the same point should be inviting customers to “biggie-size” their burgers or chili at the nearest Wendy’s drive-through. The Advisory Committee on Appellate Rules should approve Alternative B and send it on to the full standing committee for consideration. Of the extant proposals, this one best balances the needs of litigants to cite more freely to appellate opinions while allowing judges the continued ability to give lesser weight to their garden-variety opinions. After all, it makes no sense that a 7th Circuit practitioner can’t offer as even persuasive authority many of the opinions written by Judge Ann Claire Williams, but could with impunity cite the lyrics of Hank Williams (perhaps his popular “You Win Again”).

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