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Federal judges are usually a reticent bunch outside the four corners oftheir courtrooms and their rulings. But at a Tuesday hearing in Washington, D.C., testimony will reveal ajudiciary that is passionately and publicly up in arms over an obscureproposal that critics say would drastically change how judges do theirjobs and increase litigation costs for clients. The proposed rule, known as Rule 32.1 of the Federal Rules of AppellateProcedure, would forbid all appeals courts from placing restrictions onthe citation of so-called unpublished opinions. Unpublished opinions — labeled as such because they are not included inthe official volumes of published rulings — are the usually brief andunpolished decisions that federal appeals courts use to dispose of 80percent or more of all cases. Currently, nine of the 13 federal circuits allow lawyers and judges tocite unpublished opinions, though they vary widely on how much weightthe opinions should be given. But in the circuits that have rulesagainst the use of unpublished opinions — notably the San Francisco-based9th U.S. Circuit Court of Appeals — dozens of judges, former lawclerks, and other lawyers have now gone on record opposed to the idea,urging that circuits be left to devise their own rules. Allowing citation of unpublished opinions, they say, will force judgesto devote substantially more of their scarce time to perfecting theseroutine rulings at the expense of more important issues. They alsoassert that for lawyers, researching the numerous and oftencontradictory rulings will add considerably to billable litigation costsand invite selective citation and abuse. “Because unpublished opinions tend to be thin on the facts, and writtenin loose, sloppy language — and because there’s about a zillion of themout there — they will create a veritable amusement park for lawyers fondof playing games,” says 9th Circuit Judge Alex Kozinski, the leadingopponent of the rule, in a 22-page letter to the committee. Supporters of the new rule counter that unpublished decisions should beaccessible to public scrutiny and citation, and that technologicalchanges have already made most unpublished opinions available online — andthus easy to research. “It’s the most controversial issue in the history of the judicialrule-making process,” says Patrick Schiltz, professor at the Universityof St. Thomas School of Law in Minneapolis. Schiltz, the reporter forthe advisory committee that is holding Tuesday’s session, says hearingson proposed rules are usually canceled because no one signs up totestify. “This is the first one that hasn’t been canceled for lack ofinterest.” More than 500 letters of comment have been filed with the advisorycommittee on appellate rules, chaired by Samuel Alito Jr., a judge onthe 3rd U.S. Circuit Court of Appeals. Fourteen judges andlawyers are scheduled to testify at the hearing — including jurists fromthe 2nd, 3rd, 7th, 8th, and Federal Circuits, all in opposition. Representatives of the American Bar Association and the American Collegeof Trial Lawyers will also weigh in, supporting the rule. “Lawyers and judges have not hesitated to cite the words of novelists,comedians, athletes, and cartoon characters,” says Judah Best, ofcounsel in the D.C. office of Debevoise & Plimpton, who will representthe ABA’s litigation section at the hearing. “There is no good reasonfor judges to treat their own words, or the words of their colleagues,any differently.” Opponents reply that novels and cartoons cannot be taken as the law of acircuit, while opinions can be. They fear that if these cursory rulingscan be cited, judges will respond either by getting bogged down writingdetailed decisions or reducing decisions to one-liners, as in”affirmed.” Neither alternative, they say, will be good for the courtsor the public. “Judges will certainly feel compelled to devote more time and resources”to unpublished opinions, says Federal Circuit Chief Judge H. RobertMayer, who will testify on Tuesday. Litigants, in turn, will have tospend more time and money researching the unpublished opinions, eventhough they have little value. “Although the proposed rule is intendedto benefit litigants, the effect may be the opposite,” says Mayer. From the New York-based 2nd Circuit, where unpublished opinions arecalled summary orders, Chief Judge John Walker Jr. wrote to thecommittee that “permitting citation of every written opinion promises toadd considerable extra work for judges and lawyers with very limited, ifany, benefit to the adjudicatory process.” Walker noted that a largenumber of the cases decided by federal appeals courts are brought byprisoners without counsel or touch on “insubstantial sentencing andimmigration” issues. Walker wrote his letter on behalf of himself and 18 other active andsenior judges on the 2nd Circuit. Four other active judges did not jointhe letter. At the Chicago-based 7th Circuit, Judge Frank Easterbrook, who favorsthe new rule on citation, says that because unpublished opinions aregenerally available on Westlaw, Lexis, and in the Federal Appendix, theconcern about increased litigation costs “no longer applies.” Easterbrook also thinks that barring citation of opinions “implies thatjudges have something to hide.” And to bolster his point that allowing citation would not harm thejudiciary, Easterbrook notes that none of the nine circuits and 21states that allow citation of unpublished opinions have urged thecommittee to defeat the proposed rule: “From that quarter, no protesthas been heard.” The 1st Circuit in Boston is the latest to allow citation of unpublishedopinions in limited instances, though it warns they will be considered”for their persuasive value but not as binding precedent.” The D.C.Circuit has probably the most expansive rule, allowing unpublisheddecisions issued since 2002 to be cited as precedent. The 2nd, 7th, 9th,and Federal Circuits still prohibit all forms of citation. ‘THE CRAZY UNCLE’ One byproduct of the debate has been a revealing and, some say,unflattering look at how unpublished opinions are produced. The practicebegan roughly 40 years ago as a time-saving device for overburdenedjudges. “Unpublished dispositions — unlike opinions — are often drafted entirely bylaw clerks and staff attorneys,” says Kozinski in his letter to thecommittee. “There is simply no time or opportunity to fine-tune thelanguage of the disposition.” As a result, Kozinski adds in characteristically colorful language,”When the people making the sausage tell you it’s not safe for humanconsumption, it seems strange indeed to have a committee in Washingtontell people to go ahead and eat it anyway.” Given that unpublished opinions resolve real cases for real litigants,Kozinski’s description of them as so much inedible sausage has not satwell, says Stephen Barnett, emeritus professor of law at the Universityof California, Berkeley’s Boalt Hall School of Law. “A lot of people are very upset at Kozinski because of the way hebadmouthed these dispositions,” says Barnett, who favors the rule withmodifications and has written extensively on the subject of unpublishedopinions. The committee’s Schiltz also asks, “Isn’t the best way to deal with suchsausage to stop making it?” He calls unpublished opinions “the crazyuncle in the attic of the federal judiciary,” and says rules barringtheir citation are like “the whispered instructions to party guests notto hurt the host’s feelings by mentioning that uncle.” Judge Richard Posner of the 7th Circuit, who agrees with Kozinski thatthe rule should not be adopted, says it is impractical to think that thecure for hurried unpublished opinions is to improve them. In an e-mailedresponse to questions on the subject, Posner offered a classic economicanalysis of the issue:
Ideally, yes, one wants top quality. But the ideal is rarely attainablein any area of human activity. It would be nice if every automobile hadthe quality of a Lexus or a Mercedes. But because resources are limited,uniform highest quality is not attainable. The same is true inadjudication. Judges and their staffs have limited time, and they haveto allocate it in such a way as to produce the best feasible product. Ifthey reallocate time from their published opinions to their unpublished,the quality of the former will suffer.

Kozinski, according to several California attorneys, helped orchestratethe letter-writing campaign that resulted in an avalanche of letters tothe committee from bar associations, public defenders, privatepractitioners — and even the likes of the American Civil Liberties Unionof Southern California, as well as Kozinski’s ideological opponent and9th Circuit colleague Stephen Reinhardt. “The number of citable cases issued by each circuit would increase byapproximately four- to fivefold,” says ACLU lawyer Peter Eliasberg in aletter to the committee. “Those organizations with greater resourcessuch as lots of young associates billing a paying client by the hourwould have a huge advantage.” But Barnett, like Easterbrook, says that concern is overstated. Barnettsurveyed public defenders in circuits where unpublished opinions may becited, and he says they were unanimous in stating that the largeruniverse of rulings added only minimally to their research time, if atall. Judge A. Wallace Tashima is the only one of 38 active and senior 9thCircuit judges to write to the committee in favor of the rule. Tashimasaid he was moved to write to “counterbalance a letter-writing campaignby opponents of the rule,” though he did not cite Kozinski by name.Kozinski declined to comment. MAY IT PLEASE THE COURT The uniformity of views from the 9th Circuit makes Barnett suspicious.”Is this the 9th Circuit, or is it Russia?” Barnett asks in remarksprepared for the hearing. He suggests that California lawyers, knowingthe strong opposition of the appeals judges, may have wanted to “pleasethe court” by stating their opposition to the rules, while those whofavor it are choosing to remain silent rather than “disappoint thejudges before whom they practice.” The hearing this week represents the next step in a lengthy rule-makingprocess that has already lasted five years. Then-Solicitor General SethWaxman first proposed the rule on citations during the Clintonadministration, though a call from Kozinski led new Solicitor GeneralTheodore Olson to shift his office’s position to neutral. In 2003, the nine-member committee voted in favor of ending no-citationrules, and there is still strong sentiment in that direction. One memberof the committee, who declined to be named, said last week, “If theseopinions are as much junk as they are made out to be, it really is afraud on the public.” After the hearing this week, the committee will vote again on the issue,this time on the specific wording that was submitted for public comment.If approved, Rule 32.1 still must go before the full rules committee,the Judicial Conference, the Supreme Court, and, eventually, Congressitself for approval. For its part, the Supreme Court has no equivalent of unpublishedopinions, though on rare occasions individual justices will issue”in-chambers opinions” on cases that have not been argued orally. Thoseopinions have been published in the U.S. Reports since 1969 and morerecently on its Web site. A series of volumes collecting all the Court’sin-chambers opinions since 1925 will be published this summer. Schiltz, the committee’s reporter, is recommending that this time therule be tabled. Through the momentum of technology and a federal lawthat will require all courts’ opinions — including the 11th Circuit’s — tobe online later this year, Schiltz thinks change will happen on its own. Rules against citation are “on their way to extinction,” he says.”Whatever harm they cause, they cause less of it each year.”

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