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Each year, more than 10,000 judicial opinions from most of the federal circuit courts of appeal contain one of the following directives: “Not to be Cited,” “Not for Publication,” “Unpublished” or “May Not Be Cited as Precedential Authority to This or Any Other Court.” Although these opinions authoritatively declare and interpret important principles of constitutional and federal law, and finally determine the rights and liabilities of the parties, they are largely exempt from public scrutiny, and the appellate courts from public accountability. To individuals unfamiliar with federal judicial practice, unsettling questions arise: Why do these courts want their opinions not to be officially published? Why do these courts forbid lawyers to refer to these cases in briefing and arguing appeals? Is there an underground body of federal law that is deliberately made to be inaccessible to lawyers? These questions resurfaced last month when the U.S. Supreme Court adopted a historic amendment to the Federal Rules of Appellate Procedure. The court’s new rule, Rule 32.1, requires federal appeals courts to allow lawyers to cite to unpublished opinions in court pleadings. The rule was recommended by the Judicial Conference of the United States, and supported by the U.S. Department of Justice. It would change the procedure in 10 of the 13 U.S. circuit courts of appeals where, by local rule, these courts either forbid citation to unpublished opinions or severely curtail its use. Only three circuits-the 3d, 5th and the District of Columbia-permit citation. The rule takes effect on Jan. 1, 2007, unless Congress countermands it, which is unlikely. The rule does not apply to opinions issued before that date. The practice of courts issuing unpublished opinions became commonplace in the 1970s due to the explosion of the courts’ dockets and the costs associated with expanded publication of routine cases that arguably do not establish new law. According to this efficiency rationale, if opinions are selectively published, judges can spend less time writing opinions and more time deciding a greater number of cases. The leading opponent of the rule change, Judge Alex Kozinski of the 9th Circuit, has argued that unpublished opinions should not be accorded precedential weight because they are drafted by law clerks and staff attorneys and given only cursory attention by the judges. According to Kozinski, “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.” However, the practice of routinely suppressing opinions has several costs. Unpublished opinions, according to former D.C. Circuit Judge Patricia Wald, “increase the risk of nonuniformity, allow difficult issues to be swept under the carpet, and result in a body of ‘secret’ law practically inaccessible to many lawyers.” Moreover, even though every opinion is accessible on legal databases, the playing field is not level when large litigants have greater resources to perform exhaustive legal research than smaller parties. And even if the opinions are not actually “secret,” it is critical that the operation of the federal court system be transparent and the suspicion of improper motivation dispelled. Constitutional concerns Finally, the prohibition against lawyers citing unpublished cases raises serious constitutional questions, which the Supreme Court and the advisory committee no doubt considered. To the extent that the no-citation rule confers upon judges an absolute power to declare which decisions are binding on courts and which are not, the rule arguably exceeds the power of federal judges under Article III of the Constitution. Indeed, this conclusion was expressed six years ago by the late 8th Circuit Judge Richard Arnold in Anastasoff v. U.S. After tracing the origin and meaning of the doctrine of precedent, Arnold held that a rule that declares that unpublished opinions are not precedent is unconstitutional because it allows judges to ignore principles previously determined to be permanent, and to decide cases based upon the caprice or the will of the judge. As Arnold wrote: “A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.” Whether the nonpublication, noncitation rules represent an arbitrary exercise of judicial power that creates an underground body of secret law good for one time only, as Arnold contended, or are necessary to allow judges more time to do a decent job, as Kozinski has argued, the long-running debate has now been dramatically altered by the Supreme Court’s adoption of the new rule. To be sure, court backlogs may grow as a result of the change, and court delays increase. More judgeships may be necessary to handle the volume. But when the integrity and legitimacy of the judicial process is so vulnerable to criticism, arguments based on administrative efficiency are not compelling. The action of the Supreme Court is long overdue. Bennett L. Gershman is a professor at Pace University School of Law in White Plains, N.Y.

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