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The U.S. Judicial Conference this fall will take up the controversy over whether lawyers should be allowed to cite unpublished opinions, following a unanimous vote June 15 by a lower committee. Most federal circuits already allow citation of unpublished opinions. Only the 9th U.S. Circuit Court of Appeals — which is the largest appellate court — and three others currently prohibit citation. The new rule, 32.1, would bring all federal circuits in line. There’s also an effort to change state rules in California to allow citation of unpublished opinions. An overwhelming majority of 9th Circuit judges have resisted the rule change. According to a survey, 31 active judges said the new rule would cause problems, including a dramatic increase in the already crushing workload. 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 Congress.

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