Hastings Law Journal


The federal courts of appeals have used "unpublished opinions" for thirty years as one method of coping with the "crisis of volume." Recent developments demonstrate that interest in this controversial practice remains high. Panels of the Eighth Circuits and Ninth Circuits reached opposite conclusions regarding the propriety of the practice, and in so doing described the nature of the appellate process in remarkably different ways. Several circuits have recently amended their rules, liberalizing citation of unpublished opinions. The Advisory Committee on Appellate Rules has approved a proposed new rule permitting citation of unpublished opinions. Inasmuch as the rules regarding citation of unpublished opinions speak in terms of the "precedential" effect of such decisions, this Article examines the no-citation rules in light of the purpose and operation of the doctrine of precedent. Professor Dragich Pearson argues that limited publication and, especially, no-citation rules are fundamentally incompatible with a system based on the rule of precedent. The courts of appeals, in adopting limited publication and no-citation rules, have taken an incomplete view of the way precedent matters. Past decisions are precedents, whether or not "published," because they are historical facts. The reach of a precedent is determined not by publication but by the breadth of the deciding court's characterization of its holding. It is up to the subsequent court to determine the applicability of the precedent in a later case. The economy arguments typically advanced in support of the rules are weak and reflect a flawed understanding of precedent. Professor Dragich Pearson suggests that federal courts of appeals abandon the notion of "unpublished" decisions. Instead, the courts of appeals could use abbreviated opinions to process easy or redundant cases quickly and to limit the future effect of decisions in such cases. Citation of such opinions should be permitted for whatever they may be worth in the free market of precedents.

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