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San Francisco—The U.S. Judicial Conference this fall will take up the controversy over whether lawyers should be allowed to cite unpublished opinions, following a June 15 unanimous vote by a lower committee that they be allowed to do so. Most federal circuits already allow citation of unpublished opinions. The 9th U.S. Circuit Court of Appeals—as well as the 2d, 7th and Federal circuits—currently prohibit citation in unrelated cases. The new rule, 32.1, would bring all federal circuits in line. There is also an effort to change state rules in California to allow citation of unpublished opinions. A majority of 9th Circuit judges oppose the rule change, according to a survey. But the opinions of 9th Circuit judges apparently didn’t resonate much with their colleagues. The vote was based largely on the empirical data presented along with that same survey, said John Rabiej, a judiciary staffer. Other judges and attorneys say that allowing full citation will bring more consistency to the law and will require judges to be more accountable when they decide cases. The vote came out of the 14-member Committee on Rules of Practice and Procedure, which met in Boston and is chaired by Chief U.S. District Judge David Levi of the Eastern District of California. The full Judicial Conference will take up the issue at its September meeting. If the conference approves the rule change, the proposal will proceed to the U.S. Supreme Court and then to Congress.

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