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What do the Old Testament, Shakespearean sonnets, newspaper columns, and law review articles all have in common? Together with myriad other sources, they make up the growing body of “persuasive authority” that lawyers cite in their briefs. In fact, about the only sources lawyers do not cite are “unpublished decisions” authored by appellate courts. Many appellate courts have rules that bar citation to such unpublished decisions except in the same or related cases. See, for example, the 2nd U.S. Circuit Court of Appeals’ Rule �0.23, which says that “since [unpublished summary orders] do not constitute formal opinions of the court and are unreported or not uniformly available to all parties, they shall not be cited or otherwise used in unrelated cases before this or any other court.” Lawyers who ignore such rules, along with the “no-citation” warnings that are typically emblazoned in capital letters on these unpublished rulings, do so at their peril. But all this may change at the federal level under a proposed new rule that is currently wending its way through the Judicial Conference, the rulemaking body of the federal courts. The new rule would prohibit federal appeals courts from imposing any restrictions on citation that do not apply to all of their rulings. In other words, the rule change would keep appellate courts from cordoning off selected rulings from the universe of legal authority available to litigants. Although the new rule would not prevent courts from limiting the precedential effect of certain rulings or from designating such rulings “unpublished,” it would permit lawyers to cite such rulings as persuasive authority. Supporters of the proposed rule point out that the term “unpublished decisions” has already become a misnomer, as such decisions are currently published on court Web sites, in commercial databases such as Lexis and Westlaw, and in a compendium known as the “Federal Appendix.” Technology has made these decisions available to everyone, the argument goes, so why shouldn’t lawyers be allowed to cite them? Earlier this year, Chief Judge John Walker, joined by most of his colleagues on the 2nd Circuit, sent the Judicial Conference an 11-page response to that question. Judge Walker argued that the no-citation rule enables courts to expedite routine cases by allowing them to write short explanations of their rulings without the meticulous vetting involved in preparing a published opinion and without concern that such shorthand dispositions might affect future cases. Abolishing the no-citation rule, he contended, would force the court to write longer opinions in routine cases, wasting judicial resources. Or else it would lead judges to whittle their “unpublished decisions” to Sphinx-like dispositions stating only, “Affirmed,” to avoid the prospect that they will later be confronted with language that did not receive the scrutiny given to published opinions. Such objections have so far fallen on deaf ears, as the proposed rule recently took another step toward final approval by the Judicial Conference. This may stem from the recognition that those federal appeals courts that have abandoned the “no-citation” rule internally have not, in fact, experienced a significant slowing of their docket or other adverse effects. But momentum for the change may also reflect a deeper concern that the “no-citation” rule has sometimes operated arbitrarily. There are few written criteria to guide federal appeals courts in determining which of their rulings should be slapped with the “no-citation” label. The practice is supposed to be that “unpublished decisions” are issued only when an existing precedent covers the claim at issue, but some unpublished decisions do not fit this description. Indeed, some “no-citation” rulings are the only authorities within a circuit that speak to an issue, and others have prompted review by the Supreme Court. In such cases, either the appeals court was wrong in its assessment of the importance or novelty of the case or the court’s “no-citation” determination was motivated by other, unexplained considerations. Either way, we are left to ponder why the court chose not to “publish,” which tends to undermine confidence in the transparency of the appellate system. The Judicial Conference should adopt the proposed new rule, which would lift a restriction that the courts have not imposed consistently and that does not apply to any other source in the vast sea of “persuasive authority.” Michael P. Shea is an appellate attorney at Day, Berry & Howard. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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