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In the appellate world, drama sometimes plays out in some rather unlikely venues — rulemaking, for instance. Ordinarily, rulemaking has all the excitement of a long cite check. Occasionally, however, the struggle to develop rules reflects a larger battle to resolve broad and important questions of law and policy. The Administrative Office of the U.S. Courts currently is seeking public comment on a proposed amendment to the Federal Rules of Appellate Procedure that would allow parties to cite to unpublished opinions — those opinions designated by the courts as “not for publication” or “nonprecedential.” There always have been unpublished opinions, but the practice greatly increased in the past 50 years in response to an enormous caseload increase in the federal appellate system. Today, a majority of the decisions by federal appeals courts are unpublished. If adopted, the new rule would bring to an end a period of experimentation which has spanned more than half a century and has led to wide divergence among the federal circuits and the state courts on the status of such “unpublished opinions.” At present, some courts freely permit citation to these opinions, some flatly prohibit citation and some allow but disfavor it. All Connecticut state appellate decisions are reported and our state court rules permit citation to unreported decisions from other jurisdictions so long as the court and opposing counsel are provided with copies. The impetus behind “unpublished” decisions and the no-citation rules is straightforward: both judicial efficiency and the recognition that many opinions are of little precedential value militate in favor of selective publication. Almost from the outset, however, the practice has been controversial. The U.S. Supreme Court has been asked on several occasions to rule on the validity of “no-citation” rules in the circuits, and a panel of the 8th Circuit in 2000 held that the circuit’s own rule prohibiting the use of unpublished decisions as precedent was unconstitutional. The full court subsequently vacated the decision in Anastasoff v. United States as moot, but the debate sparked by the opinion continues. Broadly speaking, the original Anastasoff holding was that every case a court decides must constitutionally be considered precedent. Any opinion, whether characterized as “published” or “nonpublished,” can be cited and all are equally binding. The Anastasoff Court rested its holding on a conclusion that the creation of different tiers of opinion was a power beyond that conveyed to an Article III court by the federal constitution. The notion that some opinions are “more equal” than others has been criticized on a variety of other grounds as well, including violation of separation of powers and the First Amendment, as well as the notion that the practice creates “secret law” inaccessible to some litigants and contributes to a lack of uniformity in the development of the law. On its face, the proposed federal rule skirts these issues. It takes no position on whether the practice of designating opinions “not for publication” is constitutional and does not attempt to bar any court from issuing such an opinion. The rule also doesn’t purport to dictate what effect a court must give an “unpublished” opinion; it merely says that the parties must be permitted to cite them. The whole idea of “unpublished” opinions has begun to have an “emperor’s new clothes” aspect, since electronic research has made many of these opinions widely available. If a lawyer can get the opinion online, either from a court’s Web site or a private research service, how can we say it isn’t there? The laudable immediate effect of the rule, if approved, will be to shift the debate away from quibbling over citation squarely to the precedential weight of these opinions. If unpublished opinions have no precedential value at all, is the requirement that parties be permitted to cite them a nullity? Does according these opinions full precedential value eliminate all systemic benefit of denominating them “not for publication?” Is it possible to create a two-tier system in which all opinions can be cited, but some are characterized by the courts as more “precedential” or more valuable than others? How would such a system be developed and how would it operate? Answering these questions will go beyond mere rulemaking and will touch on our understanding of the meaning of the law and the proper role of the courts in the development of that law. The proposed amendment is a necessary first step. Susan Marks is an appellate lawyer at the state’s attorney’s office.

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