Stupid new federal court rule about unpublished opinions

A new national federal court rule, Federal Rules of Appellate Procedure Rule 32.1, prohibits federal courts from prohibiting or restricting citations of unpublished opinions. However, the new rule does not require any court to use unpublished opinions as binding precedent. The district courts have their own set of rules, the Federal Rules of Civil Procedure, but follow the FRAP rules when there is no applicable FRCP rule (as for amicus briefs).

Prior to the enactment of the new rule, an article noted, "The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it." If ten of the thirteen circuits independently had rules or policies against the citation of unpublished opinions, then there are probably some darn good reasons for such rules and policies.

An article said,
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"Because unpublished opinions tend to be thin on the facts, and written in loose, sloppy language -- and because there's about a zillion of them out there -- they will create a veritable amusement park for lawyers fond of playing games," says 9th Circuit Judge Alex Kozinski, the leading opponent of the rule, in a 22-page letter to the committee.

A 2003 article said,

In testimony before a House Judiciary Committee hearing last year, Kozinski described unpublished opinions as "simply a letter to the parties telling them who won and who lost, and why."

Indeed, many unpublished opinions have little or nothing about the facts of the case because the parties in the case are already well familiar with those facts.

So far as I can see, about the only thing that has been said in favor of the new rule is that modern technology has made it easy to search and retrieve unpublished opinions. That is like saying that we should all blow our brains out because guns have made suicide easier. In contrast, the new rule has the following disadvantages: the facts of the case that are given by the unpublished opinions are sketchy or even non-existent; the judges' reasonings are too sketchy; some court cases are not suitable to be precedents; often the opinions' authors themselves do not want the opinions to be cited; many unpublished opinions are written only to satisfy the litigants that there was some reasoning behind the decision; as a result of this rule, judges will often spend more time writing unpublished opinions, increasing court backlogs and taking judges' time away from writing published opinions; judges will stop issuing unpublished opinions in many cases in order to avoid being cited; many unpublished opinions are written by court clerks; there is too big an expansion of citable precedents; it increases the likelihood of conflicts between precedents; this new rule increases the disadvantages faced by (1) pro se litigants who do not have access to the best online legal search engines such as Westlaw and (2) attorneys who are not familiar with a particular specialty. And as the King of Siam would say, etcetera, etcetera, etcetera.

Former 8th circuit appeals judge Richard Arnold supported the new rule. An article said,

Arnold, who assumed senior status in 2001, also said the new rule would lead almost inevitably to giving unpublished opinions substantial weight as precedents. "It would be hard for a court to say, 'You can remind us what we did before, but we don't care. We're going to ignore it.'"

Asked if he was affirming the fears of opponents such as Kozinski that the rule change would create a slippery slope toward the widespread use of unpublished opinions, Arnold said, "Yes, and I hope the slope is very steep and very slippery." He added, "I don't know what judges are afraid of."

Judge Arnold, you yourself just described one of the things that "judges are afraid of" : "It would be hard for a court to say, 'You can remind us what we did before, but we don't care. We're going to ignore it.'" Judges will feel under pressure to follow the reasoning of other judges' decisions which for various reasons should not even be cited, let alone be used as deciding precedent.

Incredibly, the advisory committee that recommended the rule, which by coincidence had two members -- John Roberts and Samuel Alito -- who have since become Supreme Court justices, proposed that the rule be retroactive, but the final version of the rule is prospective only:

The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1 [2007]. The high court adopted that amendment in the rule change . . .

Making the new rule retroactive would have meant authorizing the citation of unpublished opinions whose authors did not anticipate that this new rule would greatly increase the likelihood that their opinions would be cited.

The new rule is also discussed here.

In my federal lawsuit against the California smog impact fee, California's attorney could not even wait for this new national FRAP rule but attached an entire unpublished district court opinion to his answer to my complaint, in violation of the old 9th circuit local rule prohibiting citation of unpublished opinions.

Also, there has been a lot of controversy on this blog over my unproved assertion that the 9th Circuit once had a local rule prohibiting the citation of district court opinions, published or not. I find it easier to believe that such a rule existed than to believe that anyone would be dumb enough to enact this new rule on unpublished opinions, FRAP Rule 32.1.
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