COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES

OVERSIGHT HEARING

ON

AUNPUBLISHED JUDICIAL OPINIONS@

Thursday, June 27, 2002

2141 Rayburn House Office Building

2:00 p.m.

WITNESS LIST

Professor Arthur Hellman, Professor of Law, University of Pittsburgh School of Law

Kenneth Schmier, Chairman, Committee for the Rule of Law

Honorable Alex Kozinski, Judge, United States Court of Appeals for the Ninth Circuit

Honorable Samuel A. Alito, Jr., Judge, United States Court of Appeals for the Third Circuit; and Chair, Advisory Committee on the Federal Rules of Appellate Procedure

Statement of the Honorable Howard L. Berman

for the

Subcommittee on Courts, the Internet, and Intellectual Property Hearing

on

AUnpublished Judicial Decisions@

June 27, 2002

************************************

Mr. Chairman,

I am pleased to join you today for this oversight hearing on AUnpublished Judicial Decisions.@ This is obviously an issue that has many in the judicial and legal communities quite exercised. You have shown significant foresight in bringing the issue to the attention of myself and other Subcommittee Members. In fact, you are to be commended for your diligent efforts throughout this Congress to conduct oversight of those matters that fall into our Courts jurisdiction.

The issue before us today - unpublished judicial decisions - poses important questions related to the U.S. Constitution, the Framers= intent, judicial efficiency, and the fairness of our judicial system. While we certainly won=t resolve these questions here and now, I expect that our learned witnesses will provide us with strong insights on these issues.

I particularly want to thank Judge Kozinski from the Ninth Circuit for shuffling his schedule and traveling across the country to be with us today. I have long respected his thinking on many issues, and know that his presence here indicates the importance he attaches to the issues before us.

While I am certainly interested in our witnesses= analyses of the pros and cons of unpublished judicial decisions, I am also interested in an ancillary issue that was raised by Judge Kozinski in his testimony. Specifically, what, if anything, can or should Congress do - besides providing a forum for discussion?

The independence of the Judiciary is an integral aspect of our form of government. Having sat on this Subcommittee for nearly twenty years, I have developed a healthy respect for the need to ensure that the Legislative Branch not interfere with the independence of the Judiciary. Even where I have strongly disagreed with the direction of the Judiciary, as with the judicial privacy issue, I still pursue solutions that leave it up to the Judiciary to manage itself.

It appears that the issue of unpublished judicial decisions is one that naturally lends itself to resolution by judges themselves. Whether the judicial resolution comes through court decisions interpreting the U.S. Constitution or new administrative rules, the Judiciary is capable of grappling with this issue itself. In fact, it may be an issue that, under the U.S. Constitution, only the courts can resolve.

Anyway, Mr. Chairman, I look forward to hearing our witnesses go at it.

*********************************************

6/27/02 CONGTMY (No Page)

6/27/02 Cong. Testimony (Pg. Unavail. Online)

2002 WL 20318651

(Publication page references are not available for this document.)

Congressional Testimony by Federal Document Clearing House

Copyright 2002 by Federal Document Clearing House, Inc.

Thursday, June 27, 2002

UNPUBLISHED JUDICIAL OPINIONS

ARTHUR D. HELLMAN

Statement of Arthur D. Hellman Professor of Law and Distinguished

Faculty Scholar University of Pittsburgh School of Law

Committee on the House Judiciary Subcommittee on Courts, the Internet

and Intellectual Property

June 27, 2002

Mr. Chairman and Members of the Subcommittee:

I appreciate your invitation to express my views at this oversight hearing on unpublished judicial opinions. By way of personal background, I am a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh School of Law. I have been studying the operation of the federal appellate courts for more than 25 years, starting in the mid-1970s, when I served as Deputy Executive Director of the Commission on Revision of the Federal Court Appellate System (Hruska Commission).

Since my days at the Hruska Commission, I have organized and

participated in many other studies of the federal appellate courts. In the late 1980s I supervised a distinguished group of scholars in analyzing the innovations of the Ninth Circuit and its court of appeals. Not long after that, I was selected by the Federal Judicial Center to carry out a study of unresolved intercircuit conflicts requested by Congress in the Judicial Improvements Act of 1990. More recently, I served on the Ninth Circuit Court of Appeals Evaluation Committee appointed by Chief Judge Procter Hug, Jr. Of course, in my testimony today I speak only for myself; I do not speak for any court or other

institution.

This statement is in six parts. After sketching the background (Part I) and outlining the issues (Part II), the statement deals with the obligation to explain (Part III), the precedential status of unpublished opinions (Part IV), and rules governing citation (Part V). The statement concludes with recommendations and reflections.

I. Background

In the Anglo-American legal system, the decisions of appellate courts not only resolve the disputes between the parties immediately before them; they also establish precedents to guide courts and citizens in the resolution of future disputes. That, at least, is the tradition. In the 1970s, the federal courts of appeals, responding to unparalleled increases in the volume of cases, began to break from traditional practice. The courts designated some of their dispositions as "not for

publication," and they prohibited lawyers from citing those

dispositions. Court rules explicitly or implicitly announced that

unpublished opinions "are not binding precedent." Today, "unpublished" opinions account for about 80% of the cases decided by the federal courts of appeals.

Non-publication and non-citation rules aroused controversy from the start, and several recent developments have added fuel of the debate. Among them:

In an ironic counterpoint to court rules that draw a sharp distinction between published and unpublished opinions, the spread of computerized legal research has meant that "unpublished" opinions generally are as

readily available as those designated as "published."

Six of the 13 circuits now allow citation of unpublished opinions for persuasive value while retaining the rule that such decisions are not binding.

Effective January 1, 2002, the District of Columbia Circuit has

abandoned its restrictive rule on citation of unpublished decisions. The court now allows unpublished orders and explanatory memoranda to be "cited as precedent."

West Group, publisher of the Federal Reporter System, has begun

publication of the "Federal Appendix," a hard-cover series of reports of cases designated by the courts as "not for publication." In little more than a year, the series reached its 30th volume.

The Third Circuit Court of Appeals, long a holdout against on-line publication of its "unpublished" opinions, began posting not-for-publication dispositions on its web site. Those opinions, complete with West headnotes, now appear in the Federal Appendix along with those of 10 other circuits.

In Anastastoff v. United States, the Eighth Circuit Court of Appeals held that the circuit rule denying precedential status to unpublished opinions is unconstitutional under Article III. Although that decision was subsequently vacated by the en banc court, it has generated widespread commentary about the constitutionality - and the wisdom - of nonpublication rules.

In April 2002, the Advisory Committee on Appellate Rules tentatively approved a proposal for an amendment to the Federal Rules of Appellate Procedure that would allow litigants to cite "non-precedential" decisions for their persuasive value.

In light of these developments, the time is ripe for a re-examination of the practice of designating opinions as "not for publication" and excluding them from the corpus of binding precedent. I applaud the Subcommittee for taking the initiative and holding an oversight hearing on these important questions.

II. Sorting Out the Issues

The problem of "unpublished opinions" actually encompasses three related but distinct issues. First, must a court of appeals provide some kind of explanation in every case that it decides on the merits? Second, may a court designate some of its opinions as "not for publication" and refuse to treat those opinions as binding precedent? Third, when a court designates an opinion as "not for publication," may the court forbid lawyers from citing that opinion when arguing future cases?

Before turning to these questions, three preliminary matters require attention. The first involves terminology. It is convenient to use the term "unpublished opinions," and I shall do so here. But as I have already indicated, "unpublished" does not mean unpublished in a literal sense. Today the term is no more than a shorthand for opinions that are

designated by the court as "not for publication." That is the sense in which I use the term in my testimony today.

Second, there is the question of constitutionality. As already noted, the Eighth Circuit held, in the Anastastoff case, F4- that denying precedential status to unpublished opinions violates Article III of the Constitution. If Anastastoff is correct, the issues I have identified are not simply issues of policy; they also have a constitutional dimension. This in turn means that the courts - and of course Congress - are constrained in the solutions they can adopt.

I agree with Judge Kozinski (and other commentators) that the

constitutional analysis in Anastastoff is flawed and the conclusion unpersuasive. F4- It is most implausible to suppose that the sparse language of Article III encompasses a command (or more accurately a set of commands) governing the precedential effect of intermediate appellate court decisions. Judge Arnold's analysis does not dispel the skepticism that his thesis engenders.

The final preliminary matter involves the allocation of responsibility between the courts and Congress. Without exploring the question in depth, I offer two observations. First, nothing in the existing statutory scheme limits the courts' freedom to determine the precedential status of their decisions or to regulate citation practices by counsel. Second, there is no need for Congress to take any action at this time. I have real doubts as to whether these matters are an appropriate subject for legislation; in any event, as already noted, the issues are being considered by the Advisory Committee on Appellate

Rules. At least until that process has run its course, it is appropriate for Congress to stay its hand. (The question whether the rules should be determined by each court individually or should be uniform throughout the nation will be addressed in the final sections of this statement.)

III. The Obligation to Explain A. "Some record of the reasoning"

It might appear that the issue of whether courts must provide

explanations for their decisions is entirely distinct from the policy issues raised by non-citation and non-publication rules. In theory, it is. But I have heard the suggestion that allowing citation of unpublished opinions is so undesirable that if non-citation rules are abandoned, courts should respond by disposing of cases with judgment orders or their equivalent - dispositions that announce a result but do not provide any kind of explanation.

I believe that deciding cases by judgment orders is an unacceptable

practice that should not be considered among the alternatives available

to the courts of appeals. More than a quarter of a century ago, the

Hruska Commission endorsed the "basic proposition" that in every

appellate case the court should provide "some record, however brief, and

whatever the form, of the reasoning which impelled the decision." F4

Although time has outdistanced some of the Hruska Commission's

recommendations, this one remains as cogent and compelling as it was in

1975. The reason is simple. We pride ourselves in having a government

of laws, not of men. When an appellate court decides a case, the court's

explanation - a "record [of the court's] reasoning" -provides tangible

evidence that the decision is the product of the law, not simply the

preferences of the judges who happened to sit on the panel.

The need for an explanation is particularly great when the case is

decided - as most court of appeals cases are - without oral argument. An

oral argument of even a few minutes assures the litigants that the case

has been considered by the judges themselves and that the contentions of

the losing party, although not persuasive, were at least heard. Without

oral argument, that assurance disappears. An explanatory memorandum is

not a substitute for oral argument, but it provides some evidence that

the judges have confronted the issues presented by the appeal.

Although the Federal Rules of Appellate Procedure have not been

amended to require the courts of appeals to provide "some record ... of

the reasoning which impelled the decision," as the Hruska Commission

recommended, the practice in the circuits generally conforms to this

precept. F-0- For the reasons given, I believe that it should be taken

as the starting-point in any discussion of rules governing the citation

and publication of court of appeals decisions.

B. Availability in electronic form

When the Hruska Commission was writing its report, it could assume

that if a court of appeals decided a case without a precedential

opinion, the only reason for providing "a record ... of the reasoning

underlying the decision" would be to satisfy the needs of the parties to

the litigation. As a practical matter at that time, if an appellate

disposition was not furnished to West Publishing Co. and other legal

publishers, it would not be readily available to anyone other than the

parties. Only those who took the trouble to visit or write to the

Clerk's Office to obtain a copy of the document could find out what the

court had said.

Today, of course, the situation is very different. Opinions -whether

or not designated for publication - are produced electronically. And 11

of the 13 circuits make their "unpublished" opinions available to West,

Lexis, and other electronic publishers. E:0This group includes the

circuits that prohibit the citation of unpublished opinions as

precedent. The courts thus recognize that ready access to "unpublished"

opinions is an important mechanism for accountability irrespective of

the decisions' binding effect.

Two circuits continue to withhold their "unpublished" opinions from

electronic services. Ironically, both circuits - the Fifth and the

Eleventh - allow citation of unpublished opinions as "persuasive"

authority. But for most lawyers the authorization is hollow, because

opinions that cannot be found on line are essentially unavailable.

I believe that all of the courts of appeals should make their

unpublished dispositions available in electronic form to publishers and

other information providers. Whether or not the decisions can be cited

as precedent, members of the legal community and other citizens have a

strong interest in knowing how the courts are carrying out their work of

resolving disputes and applying the law. In all of the circuits,

unpublished dispositions constitute a majority - generally a

substantial majority - of the appeals decided on the merits. Thanks to

modern technology, the practical obstacles that once stood in the way

of allowing citizens to monitor this part of the courts' work no longer

exist. Only by making all of their decisions available to publishers can

the courts satisfy their obligations of accountability. There is no good

reason why they should not do so.

IV. The Precedential Status of Unpublished Opinions

Although it might seem logical to consider the options available to

lawyers at the argument stage before turning to the options available to

the judges in deciding cases, I will reverse that sequence for what I

hope will be an obvious reason. If judges must treat unpublished

opinions as binding precedents, it would make no sense not to allow the

lawyers to cite these decisions. On the other hand, if unpublished

opinions are not binding, the desirability of a non-citation rule

remains an open question. So I turn first to the precedential status of

unpublished opinions.

To set the stage, it is necessary to outline the existing practices in

the federal appellate system. Cases in the federal courts of appeals

ordinarily are heard by panels of three judges selected at random from

among a much larger number of judges (active, senior, and visiting). All

of the circuits follow a rule under which published panel opinions are

binding on subsequent panels of that court, unless overruled by the

Supreme Court or by the court of appeals en banc. F-0- The question is

whether unpublished opinions should also be treated as binding.

Two prominent federal judges have addressed this question and have

reached contrary conclusions. In an article that preceded the

Anastastoff decision, Judge Richard Arnold took the position that unless

"the parties concede that a prior panel opinion governs the issue"

presented by a new case, "all decisions have precedential significance"

and must be followed by subsequent panels. F4- Judge Alex Kozinski,

writing in response, defended his circuit's rule that unpublished

dispositions "are not binding precedent." E AI

I believe that both judges make two errors. First, they do not

adequately address the antecedent question: binding as to what? What is

it that a later panel would be obliged to follow if unpublished opinions

were treated as binding precedent? Second, both judges assume that the

precedential status of unpublished opinions is an all-or-nothing issue:

either unpublished opinions must be treated in the same way as published

opinions, or the courts should be free to disregard them. I believe that

if we look more closely at what might be binding in an unpublished

decision, we may find a middle ground on the question of what the rule

should be. At least we will better understand what is at stake in the

debate.

A. Binding as to What?

To think sensibly about the question whether unpublished opinions

should be treated as binding precedent, we must ask: "binding as to

what?" What is it that the later panel would be bound to if unpublished

opinions were put on the same plane as published opinions of the same

court?

There are, at bottom, two possible answers to this question. An

unpublished opinion may announce a proposition of law that addresses one

of the issues presented by the case now before the panel. Or, the

unpublished decision may apply established law to a record which, in its

relevant facts, cannot be distinguished from that of the new case.

1. Unpublished opinions as a source of legal rules

In Judge Kozinski's view, "the most serious implication" of a rule

requiring later panels to follow unpublished opinions is that it "would

preclude courts from developing a coherent and internally consistent

body of caselaw to serve as binding authority for themselves and the

courts below them." The reason, Judge Kozinski explains, is that writing

a "precedential opinion" is "an exacting and extremely time-consuming

task." The volume of appeals in the federal appellate courts makes it

impossible for judges "to write precedential opinions in every case that

comes before them."

The linchpin of this argument is the proposition that writing

"precedential opinion" is "an exacting and extremely time-consuming

task." Judge Kozinski elaborates on this point as follows:

The rule of decision cannot simply be announced; it must be selected

after due consideration of the relevant legal and policy considerations.

Where more than one rule could be followed -which is often the case -

the court must explain why it is selecting one rule and rejecting the

others. Moreover, the rule must be phrased with precision and with due

regard to how it will be applied in future cases. ... [When a case is

decided without precedential opinion,] the rule of law is not announced

in a way that makes it suitable for governing future cases. t

The problem with this argument is that if courts are using unpublished

opinions to announce new rules of decision, while self-consciously

rejecting others that might plausibly be followed, they are violating

their own standards for deciding cases without published opinions. The

Ninth Circuit's rule, for example, provides that an opinion should be

published if it "[e]stablishes, alters, modifies or clarifies a rule of

law." Any opinion that fits Judge Kozinski's description will also fall

with the category of opinions that warrant publication.

The courts of appeals do, on occasion, use unpublished opinions to

announce new legal rules. One such case was Christie, [the unpublished

Eighth Circuit decision that the Ananastoff panel relied on. But Judge

Kozinski does not suggest that this happens often, and my impression is

that it does not (although this is a subject on which additional

empirical research would be welcome). Under what circumstances, then,

might a panel find that an unpublished opinion has announced a

proposition of law that is not supported by binding published authority?

I think there are two.

First, there is what might be called the "implicit holding." The

implicit holding is a proposition of law that logically underlies a

court's decision but is not stated. A common example involves the

standard of appellate review. The court of appeals will summarize the

appellant's challenge to a ruling by the trial court and then say, "We

find no abuse of discretion. We therefore affirm."

As a matter of logic, this manner of approaching the issue certainly

suggests that the particular trial court ruling is reviewed for abuse of

discretion rather than de novo or by some other standard. And in the

Ninth Circuit, at least, statements of that kind have been treated as

holdings. L4- But in my view, whatever the label, such statements should

not be treated as binding authority for the underlying proposition. And

that is so whether or not the opinion is published.

The Ninth Circuit has actually addressed a very similar situation in

an en banc opinion. In Beisler v. Commissioner, F the taxpayer asserted

that certain payments were excluded from income under section 105(c) of

the Internal Revenue Code. To qualify for the exclusion under the

statute, the payments had to satisfy two conditions; for present

purposes these may be referred to as (1) and (2). A prior decision, Wood

v. United States, ..held that the payments there were excluded. The

taxpayer in Beisler argued that the court in Wood, in allowing the

exclusion, necessarily found that condition (2) was satisfied.

The Ninth Circuit rejected that argument. The court acknowledged that

the Wood opinion "recited" condition (2), but found that this was not

the equivalent of a holding. All that could be said was that the Wood

court "evidently assumed, without explanation, that [the requirements of

condition (2)] were met." The en bane opinion continued: "Such unstated

assumptions on non-litigated issues are not precedential holdings

binding future decisions."

The Beisler principle will cover many of the situations in which Judge

Kozinski fears that unpublished opinions will make bad (or at least

thoughtless) law. For example, in a recent panel discussion, Judge

Kozinski described a Title VII retaliation case in which he was

responsible for preparing an unpublished opinion. The opinion failed to

make clear whether a particular employee was or was not a supervisor.

Judge Kozinski correctly pointed out that in a Title VII case the nature

and extent of the employer's liability may well depend on the

supervisory status of the harassing employee. But under the Beisler

principle, the Kozinski opinion (whether or not published) could not

have been authority for any proposition relating to supervisory status.

At most, references to supervisory status constituted "unstated

assumptions on [a] non-litigated issue[]."

The Beisler principle may also apply to what I will call the

"inadvertent" holding. Suppose that, in the example given above, the

court, instead of saying, "Finding no abuse of discretion, we affirm,"

had said: "We review for abuse of discretion. Finding none, we affirm."

Here the court is stating the standard of review rather than assuming

it. But if the standard of review was not disputed by the parties, and

there is nothing in the opinion to suggest that the court viewed the

issue as open or contestable, is that sufficiently different from the

implicit holding to warrant different treatment? I have real doubts

that it is.

Even if inadvertent holdings are treated as precedential when found in

published opinions, courts need not accord similar treatment to

unpublished opinions. When a panel elects to publish an opinion, that

determination triggers the elaborate process that Judge Kozinski

describes. It is reasonable to assume that every proposition of law

relied on in the opinion received some attention from the members of the

panel. But when the opinion is unpublished, we have no such confidence.

We can probably say that the judges believed that the result was not in

conflict with any law cited by the lawyers or known to the members of

the panel. But we cannot assume that the various intermediate steps

received the kind of scrutiny that would warrant giving them binding

effect in later cases.

As Judge Kozinski appears to recognize, most unpublished opinions do

not involve law declaration at all; they apply accepted rules to new

facts that in their broad outlines are very similar to those of one or

more published decisions. Yet this is where Judge Arnold takes his

stand. He argues:

To be sure, there are many cases that look like previous cases, and

that are almost identical. In each instance, however, it is possible to

think of conceivable reasons why the previous case can be distinguished,

and when a court decides that it cannot be, it is necessarily holding

that the proffered distinctions lack merit under the law. This holding

is itself a conclusion of law with precedential significance.

If the courts were still following the classic model of common law

adjudication delineated in the writings of Karl Llewellyn, I might agree

with Judge Arnold that each new decision has at least minimal

precedential significance. And because the number of cases is so large,

I might then have to agree with Judge Kozinski that requiring later

panels to follow unpublished opinions "would preclude courts from

developing a coherent and internally consistent body of caselaw." But

much of the work of the federal courts today - and particularly that

part of it that tends to generate unpublished dispositions - departs

significantly from the Llewellyn model.

These changes have important consequences for the prospect of treating

unpublished opinions as binding precedent.

The classic model of adjudication involves a process of matching

cases, memorably described by Llewellyn in his book The Bramble Bush.

The process was neatly summarized by one of the judges who personified

Llewellyn's "Grand Tradition:" the law "works itself pure from case to

case." But today on many recurring issues the law never works itself

pure; rather, the law retains an element of indeterminacy, and the

"rules of decision" are not rules but (in the Hart and Sacks

classification system) standards. Many of the illustrations are

familiar: Did border patrol agents have reasonable suspicion to stop a

vehicle? Did an alien challenging deportation show a well-founded fear

of persecution? Did a trademark holder show that the competitor's mark

created a likelihood of confusion?

I believe that in these settings the legal regime creates what I will

call a zone of discretion for appellate panels. By this I mean that

there are numerous cases in which a panel can decide a fact-based issue

either way without changing the law of the circuit or creating an

intracircuit conflict. The "zone" is not itself a legal rule, nor is it

part of the system of rules. Rather, it is a consequence of the rules

that do exist.

The zone of discretion is not limited to situations in which the court

of appeals reviews deferentially. Indeed, the Supreme Court decision

that provides the strongest support for the concept is one that involves

non-deferential review. In United States v. Arvizu, F- the Court

considered whether a border patrol agent had "reasonable suspicion" for

stopping a vehicle. The Court reaffirmed its holding that "the standard

for appellate review of reasonable-suspicion determinations should be de

novo, rather than for 'abuse of discretion."' The Court explained that

one reason for this approach is to "prevent the affirmance of opposite

decisions on identical facts from different judicial districts in the

same circuit." But the Court also reiterated that "the existence vel non

of 'reasonable suspicion"' is governed by a "totality of the

circumstances" test. The

Court acknowledged that "a totality of the circumstances approach may

render appellate review less circumscribed by precedent than otherwise,"

but said "it is the nature of the totality rule."

I believe that "the nature of the totality rule" - and of other

indeterminate or multi-factor "rules" - also allows for leeway among the

panels hearing cases on appeal. One consequence is that it becomes

almost irrelevant whether unpublished opinions are binding or not. Even

if they are binding, it is highly unlikely that an unpublished opinion -

one among the many that apply the "rule" to an infinite variety of

factual circumstances - could compel a decision one way rather than the

other in a new case.

3. Conclusion

If the preceding analysis is correct, there will be relatively few

occasions when a litigant will be able to make even a colorable argument

that an unpublished opinion compels a decision one way rather than

another in a new appeal. And if the unpublished opinion is not even an

arguably compelling precedent, the question whether such opinions are

binding becomes one of more theoretical than practical interest. In some

cases, however, the panel will find that the unpublished opinion is

squarely on point: if it is binding, it will determine the outcome. Is

the panel obliged to follow the unpublished opinion? To that question I

now turn.

B. To Bind or Not to Bind?

What is most remarkable about the current regime is not that

unpublished opinions are not treated as binding precedent, but that

later panels can treat them as though they never existed. Although Judge

Kozinski and Judge Arnold disagree on almost everything else, they both

appear to assume that the only choice is between perpetuating this

regime and giving unpublished opinions the same precedential status as

published opinions. I believe that a more nuanced approach may be

possible.

As Judge Kozinski points out, the current understanding of precedent

in the federal courts of appeals is of relatively recent origin. Indeed,

as late as 1960, at least one eminent circuit judge took the position

that "in a proper case a panel ... may frankly state its disagreement

with a decision of another panel and refuse to be bound thereby." E 6 No

one takes that position today, for good reason. E At the same time, no

one argues that federal courts should adopt the practice formerly

followed by the House of Lords, under which the overruling of a prior

decision was absolutely forbidden. In every court of appeals there are

one or more procedures for overruling circuit precedent. The question,

then, is whether it is possible to find a middle ground - an approach

that would give limited precedential weight to unpublished opinions, but

allow such opinions to be overruled more easily than published

decisions.

1. Stare decisis and the unpublished opinion

In considering the precedential status of unpublished opinions, it is

useful to begin by asking why, in our system, courts ordinarily feel

obliged to treat their own prior decisions as binding. In Moragne v.

States Marine Lines, F,4- Justice Harlan, writing for a unanimous

Supreme Court, summarized the "[v]ery weighty considerations" that

underlie the principle of stare decisis: "the desirability that the law

furnish a clear guide for the conduct of individuals, to enable them to

plan their affairs with assurance against untoward surprise; the

importance of furthering fair and expeditious adjudication by

eliminating the need to relitigate every relevant proposition in every

case; and the necessity of maintaining public faith in the judiciary as

a source of impersonal and reasoned judgments." How much weight do these

considerations carry when the prior decision is "unpublished"?

Justice Harlan's first consideration invokes what we might call

reliance interests; it emphasizes the role of precedent in guiding

primary conduct. But when a court designates an opinion as "not for

publication," it is signaling that, in the court's view, the opinion

adds nothing to the guidance found in existing decisions. In the words

of the Tenth Circuit rule, an unpublished decision "does not require

application of new points of law;" in the Fourth Circuit's language, the

decision does not "establish, alter, modify, clarify or explain a rule

of law within [the] Circuit." F-6 Even if the court' s perception is

clouded, the designation itself puts citizens on notice that they should

not rely on the opinion for legal rules not previously established.

Next, Justice Harlan invokes concerns of efficiency. He echoes Justice

Cardozo's oft-quoted observation that "the labor of judges would be

increased almost to the breaking point if every past decision could be

reopened in every case." But as Judge Kozinski and others have made

clear, the "labor" involved in preparing an unpublished opinion is

modest indeed. From the standpoint of efficiency, little would be lost

if judges were to "reopen" the determinations made in unpublished

opinions.

This brings us to Justice Harlan's final consideration. In emphasizing

the role of the judiciary as a source of impersonal judgments, Justice

Harlan calls attention to a principle deeply embedded in the idea of

justice: the principle of even-handedness, or treating like cases

alike. To allow courts to decide new cases without regard to how they

have treated similar cases in the past violates basic norms of equality

and indeed the rule of law.

The fact that the earlier decision was unpublished does not diminish

the force of these imperatives. On the contrary, if the court today

rejects the same claim that it accepted last week in a decision withheld

from the Federal Reporter, that is even more likely to shake "public

faith in the judiciary as a source of impersonal and reasoned

judgments." And that is not all. The "court" that rejects the claim

today will probably be a different "court" - i.e. a different panel of

judges - than the one that endorsed the identical claim last week.

Thus, of the three considerations that underlie the practice of stare

decisis, one applies fully to unpublished decisions, while the other two

apply only in an attenuated way. I believe that this analysis points to

the desirability of a middle ground (a) requiring panels to treat

unpublished decisions as binding precedent in limited circumstances but

(b) allowing unpublished decisions to be repudiated without en banc

rehearing.

2. Giving unpublished opinions their due

What sort of rule would give unpublished opinions their due - but no

more? Before answering that question, it is necessary to address a point

that is easily overlooked. Often - probably more often than not - the

panel that is confronted with an unpublished decision that is squarely

on point will reach a conclusion that is consistent with the earlier

decision. Under those circumstances, the question whether the

unpublished decision is a binding precedent is of little more than

academic interest. All the panel need do is to publish its opinion with

a footnote flagging the unpublished decision and announcing that there

is now no reason to cite it.

But suppose the panel concludes that the unpublished decision, if

binding, compels a result in the new case that is contrary to the

outcome the panel would reach on the basis of its independent analysis.

A simple approach to this situation is suggested by the Seventh

Circuit's rule on published decisions. In the Seventh Circuit, a panel

may overrule a prior published decision if the panel's proposed opinion

"is first circulated among the active members of [the] court and a

majority of them do not vote to rehear en banc the issue of whether the

[new] position should be adopted." Fill The courts of appeals might

consider this approach as a means of dealing with unpublished opinions.

A rule of this kind is responsive to the different processes that

attend the issuance of published and unpublished opinions. In most if

not all circuits, opinions designated as "for publication" receive

scrutiny by off-panel judges, either before or after filing. t6

Decisions that appear out of line with circuit authority, Supreme Court

precedent, or sound policy will generally be flagged, and if the initial

misgivings prove well-founded, the error will be corrected by the court

en banc or by the panel itself. By the same token, if a panel decision

has survived this scrutiny, it should be treated as authoritative, and

nothing short of reconsideration by an en banc court should suffice to

repudiate it.

In contrast, when a decision is designated as "not for publication,"

it will receive little if any attention from off-panel judges. If a

later panel concludes that the unpublished decision "got it wrong," that

judgment is entitled to great weight, particularly in comparison to the

judgment of the earlier panel, which by hypothesis did not believe that

its decision was making new law. At the same time, by requiring the

later panel to circulate a proposed opinion to all active judges, the

Seventh Circuit approach assures that the panel will not act casually

in repudiating the earlier decision.

C. Drawbacks of this approach

Many judges will be uneasy at the prospect of giving even limited

binding effect to unpublished dispositions. I therefore emphasize once

again that the approach suggested here would affect only a small number

of cases. Fact-based holdings in unpublished opinions would almost never

qualify. Propositions of law would be treated as presumptively binding

only if (a) the earlier panel announced a rule of law not supported by

existing Supreme Court or circuit precedent; (b) the proposition was

indisputably essential to the outcome of the earlier case; and (c)

adhering to the proposition in the new case would compel a holding

contrary to the holding that the panel would otherwise reach. When all

of those circumstances obtain, it would be but a modest step to say that

the obligation to treat like cases alike requires the later panel to

accord the earlier disposition a formal burial before deciding the new

case differently.

Yet even if I am right that panels would seldom find that an

unpublished disposition constitutes a compelling precedent for a wrong

decision in the case before them, that does not fully answer the judges'

concerns. The problem, they will argue, is that panels would be required

to examine numerous unpublished opinions in order to ascertain whether

those opinions can conscientiously be distinguished. That in itself

would be a substantial burden.

At least a partial answer lies in the adversary system. If one

litigant argues that an unpublished disposition constitutes a compelling

precedent for a particular outcome, the lawyer on the other side can be

expected to point out why the case cannot be read so broadly. Given that

most unpublished opinions are brief, the judges should not have to spend

a great deal of time analyzing these arguments.

There is, however, a further difficulty with the approach suggested.

Even if it would make sense for the courts of appeals, how would it work

in the lower courts of the circuit? Suppose that a litigant were to

point to an unpublished decision which, under the criteria set forth

above, constituted a compelling precedent in a new case. Would we say

that the lower court must treat the decision as binding law, even though

the opinion received minimal scrutiny within the three-judge panel and,

in all likelihood, none from off-panel judges? I do not think we would.

But if the lower court has the discretion to reject the unpublished

opinion, we would be giving the lower courts greater freedom to depart

from appellate teachings than three-judge panels of the court of

appeals. E4 That cannot be right either.

D. Conclusion

Reluctantly, I conclude that the Seventh Circuit approach is not an

acceptable middle ground. If unpublished opinions are to be given even

limited binding effect in the courts of appeals, they would have to be

given some precedential status in the lower courts, and that would raise

grave problems. Fortunately, what is important is not the formal legal

status of unpublished opinions but their role in the adjudicative

process. I now address that subject.

V. The Citeability of Unpublished Decisions A. Options for litigants

Perhaps some courts will be persuaded by Judge Arnold's argument that

judges do not have the power "to choose for themselves, from all the

cases they decide, those that they will follow in the future, and those

that they need not." If so, it would follow that lawyers should be

permitted to cite unpublished dispositions. The adversary system

requires no less.

The converse is not true, however. Even if later panels have no

obligation to follow unpublished opinions, I would still argue that

lawyers should be permitted to cite them. There are at least three

reasons for this.

First, citation of unpublished opinions provides information to the

courts of appeals that the courts should have, but are unlikely to

receive from other sources. Has an unpublished opinion relied on a

proposition of law that is not supported by binding published authority?

F-4- Has a panel applied established law to reach a result that could

not readily be deduced from published opinions applying the rule? How

have prior panels dealt with recurring but low-visibility issues of

procedure or remedies? F Are there patterns of apparently novel holdings

in unpublished opinions that point to systematic malfunctions in the

court's use of nonpublication rules?

This is information that a court should have, not only for the purpose

of monitoring its publication practices, but also from a jurisprudential

perspective. Indeed, from a jurisprudential standpoint I fear that there

may be an element of wishful thinking in judges' resistance to allowing

citation of unpublished opinions. For example, Chief Judge Boyce Martin

of the Sixth Circuit has emphasized the value of keeping the body of

circuit law "cohesive and understandable, and not muddying the water

with a needless torrent of published [and therefore citable] opinions."

But as Professor Loren Robel has pointed out, the "cohesiveness" that is

achieved by excluding unpublished opinions from the corpus of citable

precedent "is a false cohesiveness, achieved only by ignoring decisions

that create the mud." Courts do themselves no favors by forbidding

litigants from telling later panels about unpublished decisions when

awareness of those decisions could help the court to bring greater

coherence to the law or simply to improve the operation of

nonpublication plans.

Second, there is something unseemly about a court's laying down a rule

that lawyers may not call the court's attention to decisions of that

court that bear on the issues in a new appeal. As members of the

Advisory Committee on Appellate Rules pointed out at the April meeting,

lawyers generally can cite just about everything else to a court of

appeals - anything from decisions of foreign tribunals to op-ed pieces

and news stories. It is at least anomalous that the one body of material

lawyers cannot cite is composed of decisions of that very court.

Although I would not argue that non-citation rules violate the First

Amendment, they do implicate First Amendment concerns. Recently, in

Legal Services Corp. v. Velasquez, the Supreme Court emphasized the

importance of allowing attorneys to "present all the reasonable and

well-grounded arguments necessary for proper resolution of the case."

The Court struck down a law that sought "to prohibit the analysis of

certain legal issues and to truncate presentation to the courts."' While

this holding would not apply to restrictions imposed by the courts

themselves, it does raise doubts about the soundness of rules that

"truncate presentation" of the law - here, the court's own decisions.

Finally, the experience of those courts that have allowed citation of

unpublished opinions does not bear out the fears of Judge Kozinski,

Judge Martin, and other proponents of non-citation rules. The Tenth

Circuit suspended its non-citation rule on a trial basis 8 years ago.

Before long, the court made its permissive rule permanent. Presumably

the judges found that they were not being inundated with citations to

unpublished dispositions, and that allowing lawyers to cite unpublished

opinions for their persuasive value did not interfere with the court's

ability to establish a coherent body of law within the circuit.

Upon reflection, it is not surprising that courts have been able to

live in peace with permissive citation rules. As a member of the

Advisory Committee pointed out at the April 2002 meeting, a lawyer who

relies on an unpublished opinion in a brief or oral argument is in

effect acknowledging that no published opinion supports the lawyer's

position. That is a substantial disincentive to promiscuous citation of

unpublished rulings.

There may be a second reason why lawyers have been restrained in their

use of unpublished dispositions. Most appellate decisions ratify the

status quo by affirming criminal convictions, administrative agency

determinations, or district court rulings denying relief in civil cases.

F Unpublished dispositions are skewed even more strongly in the same

direction. This means that the typical appellant is far more likely to

find support in published decisions than in those that are unpublished.

The typical appellee will find more ore in unpublished dispositions, but

because the corpus of published decisions is so favorable, there will

usually be little incentive to go beyond them. Thus, for somewhat

different reasons, both classes of litigants will generally be content

to make their arguments on the basis of published opinions alone.

B. Options for the court

When the Advisory Committee on Appellate Rules discussed this issue in

April, members who supported the proposed national rule emphasized that

allowing citation by litigants would in no way limit the power of the

courts of appeals to designate some opinions as "non-precedential." That

is certainly true. But it does not follow that because unpublished

opinions are not binding precedent, the courts of appeals should feel

free to ignore such opinions when they are on point. After all, it is

commonplace for these courts to discuss opinions of other circuits,

opinions of district courts, state-court decisions, and other

non-binding authority. Why should unpublished decisions of the same

court not receive at least as much consideration?

In fact, I would go further. Even if no change is made in the

precedential status of unpublished opinions as a matter of law, I

believe that the courts of appeals should feel obliged to at least

acknowledge on-point dispositions cited by a party, if only to make

explicit that the disposition has been superseded by the published

disposition. This belief rests on the premise that the task of creating

a coherent and sensible body of law is not one that the judges carry out

alone; on the contrary, under the adversary system the judges work (or

should work) in partnership with the lawyers. When a litigant, through

counsel, informs the court that a prior panel has improvidently made new

law in an unpublished opinion, the court should acknowledge the error

and either assimilate the holding into the body of circuit law or

forthrightly repudiate it. F

C. Options for the Advisory Committees

In January 2001, Solicitor General Seth Waxman wrote to Judge Will

Garwood, chair of the Advisory Committee on Appellate Rules, proposing

the adoption of a new rule that would allow litigants to cite

unpublished opinions for their persuasive value. In April 2002 the

Advisory Committee endorsed the proposal with some modifications. I

support the Advisory Committee's decision and hope that when the process

has run its course the proposed rule will be adopted.

This is not the place for a detailed discussion of the particulars of

the rule. However, two points deserve mention. First, at the Advisory

Committee meeting in April, members debated whether the proposed rule

should include a cautionary note, similar to the one included in most of

the circuits' current rules, stating that unpublished opinions should be

cited only if no published opinion of the forum court adequately

addresses the issue. I believe that a hortatory note of this kind is

desirable. While the courts of appeals sometimes err in choosing not to

publish, unpublished dispositions generally deserve their second-class

status. Litigants should be encouraged to research published opinions

carefully before citing one that is unpublished.

Second, Chief Judge Boudin of the First Circuit has suggested that

adopting a permissive citation rule on a national basis would

"undermine[] the ability of different circuits to maintain or adopt

procedures [for unpublished dispositions] that work best in their local

circumstances." The reason, he explains, is that these procedures "are

sensitive to the volume of cases, the expectations of lawyers, the size

of the circuit and the use of different methods of screening cases and

drafting short-form dispositions."

Although I do not find this argument totally convincing, I cannot say

that Judge Boudin is wrong. I therefore believe that the rule should

include a provision that would allow individual courts of appeals to opt

out if a majority of the active judges vote to do so after giving notice

and an opportunity for comment in accordance with the procedure

specified in 28 USC section 2071(b).

In saying this, I do not retreat from my view that litigants should be

permitted to cite unpublished opinions in arguing later cases. However,

I also appreciate the value of the system of regional decentralization

embodied in the organization of the federal appellate courts. If the

judges of a court of appeals, after formally and publicly consulting the

bar of the circuit and other interested citizens, adhere to their view

that a permissive citation rule would undermine circuit operations, it

is appropriate to respect that judgment.

VI. Conclusion

A. Recommendations

In my testimony today I have suggested that judges should not treat

unpublished opinions as though they did not exist. At the very least,

courts should allow lawyers to cite unpublished dispositions. When an

unpublished disposition is closely on point, I believe that the later

panel should acknowledge it and publish an opinion that clarifies the

law on that issue. A further question is whether these matters should be

addressed on a circuit-by-circuit basis, or whether there should be

national rules.

On three issues, policy and experience point to the desirability of a

national rule, at least as the default:

1. The Federal Rules of Appellate Procedure should be amended, as the

Hruska Commission recommended, to require that in every appellate case

the court should provide "some record, however brief, and whatever the

form, of the reasoning which impelled the decision."

2. The Judicial Conference of the United States should require all of

the courts of appeals to make their decisions (including unpublished

dispositions) available in electronic form to legal publishers.

3. The Advisory Committee on Appellate Rules should proceed with its

drafting work on the proposed rule that would allow litigants to cite

unpublished dispositions for their persuasive value. However, the rule

should include a provision allowing individual circuits to opt out in

accordance with the notice-and-comment procedure specified in 28 USC

section 2071(b).

On the other hand, our system of precedent is characterized by

flexibility. Further, reasonable people can disagree as to how much

weight an unpublished opinion should carry, and how panels should treat

such dispositions when they are on point. Thus, I would not favor a

national rule on the precedential status of unpublished opinions.

B. Implications

Judge Kozinski has argued that, given the volume of appeals, it is

simply not possible for the judges to write citeworthy opinions in all

cases while still giving truly precedential opinions the care and

consideration they deserve. There are two responses to this point.

The first has already been given: several of the circuits have for

some years allowed litigants to cite unpublished opinions, and the

disastrous consequences Judge Kozinski predicts have not materialized.

Second, if judges do not have sufficient time to provide "some record

... of the reasoning" in every case, without creating problems for the

adjudication of future cases or stinting on the attention they give to

precedential opinions, then there are not enough judges to do the job

that we as citizens want them to do. Indeed, there probably are not. The

Judicial Conference of the United States recently requested 10 new

judgeships for the courts of appeals - and that number may well

understate the need.

I recognize that Congress is not likely to act on this judgeship

request, or any other, in the immediate future. In the meantime, the

courts must do the best they can with the judges they have.

Nevertheless, an oversight hearing provides a good opportunity to look

to the long term. From that perspective it is appropriate to suggest

that Congress should create new appellate judgeships not only to meet

expanding caseloads but to handle existing caseloads with a minimum of

compromise to the quality of the process.

C. A larger perspective

Half a century ago, Professor Henry Hart reminded us that the judges

who sit for the time being on our courts "are only the custodians of the

law and not the owners of it." I sometimes think that the judges of the

courts of appeals, in prohibiting lawyers from citing the courts' own

decisions, have lost sight of the great truth found in Hart's words.

I have no quarrel with the basic idea underlying nonpublication rules.

Vast numbers of appeals today involve no more than the routine

application of established law. When the judges correctly identify these

cases and relegate them to a subordinate position in the decisional

array, everyone benefits. E v But some unpublished decisions go beyond

established law or the zone of discretion. When this occurs, the judges

should welcome the assistance of litigants in assimilating or

repudiating the nonconforming dispositions.

The rule now under consideration by the Advisory Committee would go a long way in the right direction. How much beyond that the courts should

go is a question on which reasonable people can differ. I thank the

Subcommittee for holding this hearing and providing the opportunity for

a thoughtful exploration of these difficult issues.

********************************

Statement of the Kenneth J. Schmier, Chairman

Committee for the Rule of Law

Subcommittee on Courts, the Internet, and Intellectual Property

Oversight Hearing on Unpublished and Unciteable Appellate Opinions

June 27, 2002

Mr. Chairman:

Thank you for the opportunity to draw to the attention of this Subcommittee that the law of precedents, referred to as stare decisis, a fundamental element of the rule of law, has been rendered ineffective.

This is so because the vast majority of our appellate court determinations are now made in unpublished, unciteable, nonprecedential, decisions, but would be equally true if only a fraction of one percent of decisions were allowed to be so made. The choice to make decisions in this manner rests entirely with the panels that make them. There now exist vast expanses in which lawless decisions may rest without notice. This has led to inconsistent resolution of cases in many instances and renders our ASystem@, once at least theoretically perfect, unreliable. We ask that this committee restore the law of precedents to its proper operation for the protection of all.

We maintain a Website, http://www.nonpublication.com/, which is a compendium of information on this subject.

One can only wonder why our free press has not brought this troubling change of judicial accountability to the attention of the American people.

From school children to Congress, to former Attorneys General, our citizenry are under the impression that all decisions of the appellate court become citeable precedents in other cases, and that the future effect of bad precedent is a strict control upon the discretion of judges. Our citizens are uniformly unaware of unpublished, unciteable opinions and the consequences to our democracy of allowing such practices to continue.

These citizens are incredulous that a Ano citation rule@ could possibly exist in America, or even that an appellate court of any kind could make a decision that is removed from the chain of precedents. That some of our appellate courts decide over 90% of their cases in this manner seems to them outrageous, as it should. Legal scholars, judges, lawyers, and citizens echo their outrage. How, after all, can it possibly be that a criminal defendant could be forbidden to cite an appellate decision that would exonerate?

Civics classes across the country teach our precedential system of common law, and the importance of the test case for the redress of grievances. The test case is a method of forcing a resolution of an issue for all see, be bound, and therefore concerned. But how does this mechanism work when appellate courts are free to decide test cases in unciteable and unpublished decisions applicable to no one but the parties?

When opinions are citeable we must all be concerned about their effect upon the status of our law, not because of its justice to others, but because any change potentially affects us as well.

Due Process and Freedom of Speech allow us to insist upon equal treatment. No-citation rules and unpublished opinions gut the salutary power of these doctrines and make it impossible for individuals to argue past judicial resolutions to gain equal treatment in our courts, and sedate similarly situated political constituencies to be unconcerned about injustices or error.

Moreover, these same rules make it impossible for our people to govern themselves. Our government must have a self-regulating cycle. The cycle is this: We elect representatives who make our laws, the laws are applied to us individually by our courts, through the mechanism of published opinions we are able to see how our laws are actually being applied, and because we are concerned for the establishment of precedent, various groups of citizens study our court decisions. These groups of citizens foment for change where required and cause us to demand of our representatives certain actions. If our representatives refuse to accommodate us, we may then replace them. That process is severed when the application of law is not reported back to the citizens as legal precedent. In short, unless all cases are precedent, each of us stands alone, without recourse, before the enormous and unaccountable power of the judiciary, with no real mechanism for correcting our law.

My family=s experience in the courts of California, which have no-citation and non-publication rules exactly analogous to that of the 9^th Circuit is exemplary of the kind of harm now experienced by litigants all over our country.

We appealed a contractual matter determined pursuant to obvious misstatements of contract law. The presiding judge of the appellate court took the case off calendar two days before oral argument and kept it off calendar for five months. That judge then wrote the decision for the court, and marked it ANot to Be Published in the Official Reports@, meaning under California Rule 977 that the decision is not to be cited or relied upon in any other case. The decision rested upon many errors including numerous unrecognizable principles of law unsupported by any cites of authority, the correction of any one of which would force a different result. We petitioned the court for rehearing to correct error, or in the alternative, for the publication of the case to make it law for all, reasoning that the rules of law it contained would turn the contract law of California upside down and require the California Supreme Court to act.

The appellate court refused to correct the errors, and also refused to make its decision law for all, leaving us losing $700,000 according to statements of law unique for us and forbidden to be used to resolve any other case. Our petitions to the California and U.S. Supreme courts asking how we could be the subjects of law uniquely made for us were denied.

We believe the result determined by the California Court of Appeal in our case could not possibly have been the same were that decision written with knowledge that it would be citeable in other cases. We believe we were deprived of justice under law because the non-publication and no-citation rules combined to allow the judges to free themselves of the rule of law, and make rules that cannot possibly affect the public generally.

Despite the vast departures from law, our attempts to interest the press were futile. Had the decision been published as law for all, we would have been able to cry Alook what they did to contract law@ and enlist the support of all concerned about contract law. But because the decision was not law for all, we could say only, Alook what they did to us@. That cry went unheard.

The entire record of this case is available at www.nonpublication.com for those wishing to confirm our allegations.

A close friend was involved in another litigation matter in which three parties spent over $3,000,000 in attorneys= fees attempting to get an answer to a simple, but unprecedented, issue of landlord tenant law. In the end, an appellate court opinion resolved the issue, but its twenty five-page opinion is unpublished and unciteable, assuring that similarly situated parties will have to undergo the same expense and frustration attempting to get the same answer.

Six years of litigation and a year=s effort of the appellate court will bring no enlightenment whatsoever to future litigants. Instead of citizens being able to peacefully resolve such a dispute by known principles developed by common law processes and recorded in official reports of the courts, citizens facing the same issues will have to repeat the same wasteful process and friends will be turned to bitter foes. It is hard for us to see the efficiency the court claims in such a process.

Perhaps the plight of E.J. Ekdahl, a prisoner at San Quentin, California is more pathetic.

According to his letter, Mr. Ekdahl obtained a writ of habeas corpus from a Superior Court ordering the California Board of Prison Terms to set a parole hearing for him in 90 days or for the prison system to release him. The appellate court reversed in an unciteable unpublished opinion ignoring the valid statutory principles relied upon by the Superior Court. Query: where an appellate court reverses a trial court can it be said the case is routine? If the appellate court=s decision is not published and cannot be cited, what chance does Mr. Ekdahl stand of attracting attention to his case, even if it embodies the grossest of injustices? Can he ever hope for a time when some other appellate court would be forced to overrule his case, forcing reconsideration of his rights? He cannot. His case is outside the system of precedents, and there is no systemic method of ever discovering any injustice to him.

In Sorchini v. City of Covina, USCA 9^th, Judge Kozinski established the law of the 9^th Circuit as Abinding precedent@ finding a violation of court rules by counsel=s cite of an unpublished opinion directly relieving her client of liability:

AThe only way Kish could help counsel=s argument is prohibited by Ninth Circuit Rule 36-3 B by persuading us to rule in the City=s favor because an earlier panel of our court had ruled the same way.@

There is more in this opinion to concern us than the end of the doctrine of stare decisis and freedom of speech to argue law in a court of law. Kozinski excuses counsel=s conduct because the Kish court violated the 9^th Circuit=s General Order 4.3.a. prohibiting panels from discussing the facts of the case being decided in unpublished opinions, an order that also makes it impossible for court watchers to determine whether the circuit is consistent in its application of law.

Worse still, Kozinski finds this excuse valid only in this case, citing Bush v. Gore as authority to make rules of ephemeral application. The humor of this may be lost on future generations, but what is certain to survive is a combination of authority that judges are absolutely free to make decisions that do not create precedent, that they are required to ignore all cases marked unpublished no matter how relevant, and that they are free to make law of ephemeral application. It seems to us that such a combination of authority establishes the end of the rule of law in the 9^th Circuit.

The Sorchini Court resolved whether the police could be liable for dog bite injury to an escaping arrestee where the police did not announce release of the dog. But the court withheld its resolution of this issue from its published decision regarding violation of no citation rules, and decided that portion in an unpublished decision. Therefore, notwithstanding that the 9^th Circuit has now resolved that issue twice, in Kish and again in Sorchini, there exists no citeable authority from which the police may determine a legal course of conduct, nor any precedent to deter litigation by others. We cannot see any efficiency gained by this process.

In Symbol Technologies v. Lemelson Medical, USCA Fed 00-1583 (2002) the Federal Circuit Adecline(d) to consider the nonprecedential cases cited by Lemelson.@, considering only the published authorities despite the argument that unpublished decisions compelled a different result. Query: In face of such a divergence in the law between unpublished and published opinions, how are lawyers to advise clients regarding law? Shall lawyers= advice reflect what our courts publicly state is the law, or the law they actually apply in the vast majority of cases that go unpublished? Without a universal process of reconciliation how can we have one law for all? In circuits that do not provide unpublished cases to legal research services, how is anyone to even know how that court is actually resolving a given issue?

Judges tell us that the increase in the number of opinions would impose a burden upon attorneys researching a point of law. But how can a rule, which deprives a criminal or civil defendant of the right to cite a known appellate decision that would exonerate him be said to benefit that defendant?

In Re Machiko Kamiyama, Cal.App.4^th, Div. 3, G022140 (1998) a California appellate court resolved a habeas corpus petition. A woman had spent three months in prison because she left her eight-year-old child at home, in a gated community, without a sitter, while she went to work. The court expressly recognized that there was no California case on point, and despite a dissenting opinion, resolved the case in an unpublished, unciteable opinion. We ask, what institution is to resolve the law for us if it is not the appellate court? How can we reference this case if it is not published and indexed? It happens the court determined that whether good parenting or bad, having latch key children is not criminal, for to make that the law would make millions of parents criminals. Yet despite this resolution, neither police, nor social workers nor parents can have any idea what the law is, because a trial judge convicted, and the reversal is unpublished and unciteable. Are we citizens to live forever under the tyranny of doubt as to what of our actions may result in criminal liability? Absent a published opinion, what systemic mechanism of our democracy brings the need for debate of a narrow legal issue to the body politic? How will legal thought, experience, outcome, and knowledge be preserved and brought to wisdom without some method of preserving our past attempts at justice?

More importantly, consider the loss of protection to Ms. Kamiyama had her conviction been sustained in an unpublished opinion. The public would not have cared because it was not law for all. But had the same decision become law for all, government would have received millions of calls from similarly situated parents wondering what to do.

Even ignoring computerized research techniques and their astounding ability to isolate relevant precedents, limiting the number of cases a litigant or his attorney can sift through can only have the effect of denying that litigant the opportunity to argue for some measure of equal protection of the law. Moreover, can it possibly be argued that preventing the mention of 90% or so of our body of common law, while permitting mention of virtually every other repository of knowledge in our courts of law, does not constitute a presumptively unconstitutional content based restriction on the right of free speech where it matters most B in the forums where our law is considered and applied to us as individuals?

In respect of our memory of our father, who was a prosecutor and later a professor of law, and all of those who have sacrificed for the American concept of Equal Justice under Law, we have endeavored to force the judiciary to face the many unanswerable questions raised by no-citation, non-publication rules. We have litigated the issue in Schmier v. Jennings, Schmier v. Supreme Court of California, Schmier v. United States Court of Appeals for the 9^th Circuit, and Schmier v. United State Court of Appeals for the 11^th Circuit (Records available at www.nonpublication.com). In all of this litigation, and at all levels of the judicial system, we have never been able to obtain answers to the issues raised. Rather, the matters have always been dismissed for want of standing.

This has left us wondering if as attorneys and citizens, we have a duty, if not standing, to challenge a systemic constitutional violation broadly implemented by the judiciary itself, that deprives the people of fundamental constitutional protections, or whether the law requires us to remain silent until such time as that rule creates an obviously unjust result to ourselves rather than others. We think history teaches us that ignoring systemic injustice in the bud is foolish.

Moreover, we believe that because the courts are entrusted with the duty to protect the constitutional rights of the people, the judiciary has the duty of a trustee to candidly answer questions regarding the propriety of rules like Court Rule 36-3 forthrightly and without evasion. Yet Schmier v. USCA 9^th and Schmier v. USCA 11^th refused to do so. The USCA 11^th even refused to publish its decision or provide it to WestLaw, assuring, as best it was able, that court watchers would not even know that its practices have been questioned.

On April 2, of 2001 I sent a letter to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. That letter is attached hereto. I raised twenty questions regarding no-citation rules and unpublished opinions. The judges of that committee have never answered those questions.

The Subcommittee should be aware that files of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States contain many letters from chief circuit judges weighing in on this issue: Federal Circuit Chief Judge Haldane Robert Mayer wrote AEach court should be allowed to decide for itself the circumstances under which nonprecedential opinions may be cited.@ Similarly, 3^rd Circuit Chief Judge Edward R. Becker wrote Athe criteria for determining when an opinion should be legended >not precedential= should be a matter for the respective Courts of Appeals@ and that what opinions should be citeable Ashould be a matter for the Courts of Appeals IOP=s, if at all@. Circuit Judge Wilfred Feinberg of the 2^nd Circuit wrote; A I also feel that any attempt to specify uniform, national criteria for Aunpublished@ opinionsÿ?would be unwise.@ 2^nd Circuit Chief Judge Ralph K. Winter wrote Athe FRAP should not attempt to specify uniform standards regarding unpublished opinions. There is no correct set of standards writ in stone, and the present diversity of practice allows each court to choose those standards it deems most appropriate.@ 7^th Circuit Chief Judge Richard A. Posner wrote A I do think it is useful Bvery useful- to have a category of unpublished opinions, provided it is understood that such opinions cannot be citedÿ?. I do not think written criteria for when to publish an opinion are useful or even feasible. I think it should be left to the judgment of the panel.@

Perhaps 4^th Circuit Chief Judge J. Harvie Wilkinson III summed up the judges position best, Athere might be some advantage simply in leaving the subject alone.@

We think demand for unlimited access to a mechanism allowing the trumping of the rule of law is inconsistent with American notions of limits on the exercise of power by any government official. To us, admissions that the use of unpublished unciteable opinions cannot be subjected to articulable legal principles constitute an admission that the activity itself is lawless.

In Schmier v. USCA 9^th, the USCA 9^th stated that ASchmier will have to press his concerns about unpublished opinions ÿ? to the Congress@, perhaps anticipating that the difficulty of doing so would daunt us. We are here to do just that.

We ask you to recognize this as a point in history where the Congress must exercise its power of checks and balances or, as representatives of the people, knowingly yield the manifest protections of the law of precedents held by the people as protection from otherwise unfettered power of the judiciary. We ask you to consider as a warning Barbara Tuchman=s book, The March of Folly, which carefully recounts how numerous civilizations have destroyed themselves by doing things they knew were wrong at the time, justifying their actions by an anticipated, if unproven, expediency.

Our hope is that as part of the consideration of this matter the Subcommittee on the Courts can obtain the answers to the questions we could not obtain in our litigations with the judicial system or our inquiry of the Committee on Rules of Practice and Procedure.

Before I close, let me be clear on what we think should be the rule. Precedent means simply, Athat which was allowed before@. Therefore, all decisions of cases are precedent as a matter of historical fact. That does not mean precedents must be followed. It means that relevant precedents must be considered, then followed, distinguished or overruled.

All cases should be decided by written decisions carefully written to explain who won and why, considering facts and the weight of all conflicting legal principles no matter how complex. Opinions should teach the parties and the public the appropriate law to be used in all factually similar cases, and explain why conflicting arguments and precedents are rejected. No working hypothesis of result should harden into a final result until it has survived thorough scrutiny by at least three well-trained and experienced minds considering legal argument and precedents that bring to bear the benefit of historical experience. All decisions must carry the warranty that they are decided by legal principles, right or wrong, that have been equally applicable to all similarly situated in the past, or will be for the foreseeable future. That warranty only becomes implicit when each decision becomes a part of the law itself.

This substantial effort is required so that all who submit their conflicts to the peaceful judicial processes may be assured of the utmost judicial care, infinitely respectful of each individual, which is the essential promise of our democracy. This methodology implements G-d=s law, assuring all that we will not do unto anyone that which we would not do to ourselves if similarly situated.

In every case, courts should consider all relevant precedents brought to their attention or known to them, and should accord them weight according to the stature of the issuing court and respectful of the doctrine of stare decisis, yet free to follow, distinguish or overrule the dictates of any case as articulable reason supports as proper for that instant case, and all future cases of similar nature. In this way our system of citation indexes our legal knowledge so that, like the scientific method it inculcates, our legal knowledge tends always toward predictability, reconciliation, and improvement.

The concept of binding precedent, offered by Judge Kozinski as a reason all cases may not be precedent, must be ended because the institutional resistance the requisite of en banc hearing places upon the correction of error and improvement in our law is too extreme. As was written by Judge Kozinski in Hart v. Massanari, ABecause they are so cumbersome, en banc procedures are seldom used merely to correct the errors of individual panels@. Error should never be perpetuated simply for the convenience of the court. Democracy places no faith in univocalism as a device for finding or asserting truth. Rather, democracy expects to find ever-improving truth in a consensus of free speaking individuals.

The concept of binding precedent or law of the circuit must be ended in favor of the independence of panels, each subject to the flexible doctrine of stare decisis, so that controversy and inconsistency can draw enlightenment and recognition of noble truths. Moreover, our legal system should encourage citizens to find safe harbor in conduct that can be viewed as right from all perspectives, rather than encourage the nefarious to seek safe harbor in the precise language of one panel=s Abinding precedent@.

Our Official Reports, which may be online and not in books, should include all appellate decisions. Each of these decisions should be indexed and made available for study by our entire community, and particularly its law schools and representatives, so that our judges are encouraged by the possibility of public and peer review, immediately or years in the future, to strive for that decision that stands as right from all perspectives. Also in this way our laws may be improved by criticism, reconciliation, and change, and our entire society can be involved in both learning and perfecting out law, and keeping our judges and our judicial system on track. All relevant decisions should be citeable to, and may be relied upon by any court, so that our law can, at least theoretically, be said to be equally applied to all.

Americans are the most productive people in the world. We are justice-loving people. We wage war only to protect our ideas of justice. Our government has no higher duty than to provide us equal justice under law, nor do we deserve any lesser standard in our own courts than careful decisions respectful of each individual citizen and the law, no matter what the cost.

President Kennedy pledged for us: "we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and the success of liberty". These noble words pledge us to meet the cost B if there actually is proof that a cost will be required.

The job of the judiciary is to provide the discipline of ideals to our system. They must tell us what is needed to do the job right, and if they cannot get our attention, then they must refuse to do the job wrong, at least until we affirmatively order a new method.

What the judiciary may not do, and must not be allowed to do, is to remove from us the protection of the rule of law without engaging our attention and careful consideration of the protections we surrender, and the existence and extent of the expediency promised to us in exchange.

Moreover, we should be allowed to offer alternative methods for correcting the real logistical problems facing the courts. For example, careful consideration might reveal that the flood criminal appeals swamping our appellate courts might be triaged more effectively for all concerned if court appointed attorneys were paid substantial success fees for successful appeals, rather than minimal retainers to mass file appeals.

We ask the Congress to draw wide attention to this matter, so that the public may fully appreciate the protections of liberty it has already lost, to recognize how easily it could lose its liberty entirely through laxness, and may insist upon restoration of stare decisis to its proper function in the processes of our judiciary.

Respectfully submitted,

Kenneth J. Schmier

Chairman

Committee for the Rule of Law

Attachments:

Publish or Perish: Ken Schmiers Response to Please Don=t Cite This! By Judges Alex Kozinski and Stephen Reinhardt

The Binding Precedent Error: Schmier=s Response to Hart v. Massanari

Letter of San Quentin Inmate E.J. Ekdahl.

Justice in the Dark, by Brigid McMenimin, Forbes Magazine

***************************

Testimony of Hon. Alex Kozinski

Before the Subcommittee on Courts, the Internet, and

Intellectual Property

Washington, D.C.

June 27, 2002

Mr. Chairman and Members of the Subcommittee. My name is Alex Kozinski and I am a judge of the Court of Appeals for the Ninth Circuit, where I have served since 1985. Prior to that time I served for three years as Chief Judge of the United States Claims Court, now called the United States Court of Federal Claims. Immediately after law school, I clerked for then-Judge (now Justice) Anthony M. Kennedy on the Ninth Circuit. I have thus spent over two decades working for courts that issue both published and unpublished rulings, which are the subject of these oversight hearings.

I thank the subcommittee for giving me the opportunity to state my views. I was invited to speak as an individual and not on behalf of my court or the federal judiciary. The views I express are therefore my own, although I believe that they reflect the views of a substantial majority of my Ninth Circuit colleagues and many other federal appellate judges as well.

What Are Unpublished Dispositions?

As Judge Alito points out in his testimony, the term Aunpublished@ is an anachronism, dating back to the days when failing to designate a disposition for inclusion in a national reporter meant that it would not be published at all, and therefore unavailable to most members of the bar. Even at that time, unpublished did not mean secret. Like all court records, unpublished dispositions are available to the parties and the public from the clerk of the court. Today, of course, all dispositive rulings, whether designated for inclusion in an official reporter or not, are widely available online through Westlaw and Lexis, as well as in hard copy in West=s Federal Appendix.

Unpublished dispositions differ from published ones in only one respect B albeit an important one: They may not be cited by or to the courts of our circuit. Ninth Circuit R. 36-3. (As Judge Alito explains, the rule operates somewhat differently in other circuits.) With minor exceptions dealing with subjects like res judicata and double jeopardy, none of the judges of our circuit B district judges, magistrate judges, bankruptcy judges, even circuit judges B may rely on these unpublished dispositions in making their decisions. And, in order to help them avoid the temptation to do so, we prohibit the lawyers from citing them in their briefs. The rule only applies to practice in the courts of our circuit; lawyers are free to cite our unpublished dispositions to other courts, who may give them whatever weight they deem appropriate; they may write about them in law review articles or post them on websites. There is no general prohibition against citing, discussing, criticizing or deconstructing unpublished dispositions. The prohibition is narrow: It prohibits citation to or reliance on unpublished dispositions where this would influence the decision-making process of a judge of one of the courts of our circuit. In that context, and that context alone, the unpublished disposition may not be considered.

Why the Prohibition Against Citation?

The answer to this question is fairly straightforward: Prohibiting citation to, and reliance on, unpublished dispositions helps our court to maintain consistency and clarity in the law of the circuit B the law applied by lower-court judges in their courtrooms, by our panels in later cases, and by lawyers advising clients about the likely consequences of various courses of action. Maintaining a consistent, internally coherent and predictable body of circuit law is a significant challenge for a collegial court consisting of a dozen or more judges (more than two dozen in our case) who sit in ever-changing panels of three. Appellate courts nevertheless have to speak with a consistent voice. If they fail to do so B if they leave the law uncertain or in disarray B they will make it very difficult for lawyers to advise their clients and for lower-court judges to decide cases correctly. The ripple effect of uncertain or unclear caselaw is felt acutely by those caught up in legal disputes, who must litigate their case all the way to the court of appeals if they want to know how the dispute would be decided.

In order to maintain a clear and consistent body of caselaw, appellate judges spend much of their time working on published opinions B those that announce and calibrate the circuit=s decisional law. To someone not accustomed to writing opinions, the process may seem simple or easy. But those of us who have actually done it know that it=s very difficult and delicate business indeed.

A published opinion must set forth the facts in sufficient detail so lawyers and judges unfamiliar with the case can understand the question presented. At the same time, it must omit irrelevant facts that could form a spurious ground for distinguishing the opinion. The legal discussion must be focused enough to dispose of the case at hand, yet broad enough to provide useful guidance in future cases. Because we normally write opinions where the law is unclear, we must explain why we are adopting one rule while rejecting others. We must also make sure that the new rule does not conflict with precedent, or sweep beyond the questions fairly presented.

While an unpublished disposition can often be prepared in only a few hours, an opinion generally takes many days (often weeks, sometimes months) of drafting, editing, polishing and revising. Frequently, this process brings to light new issues, calling for further research, which may sometimes send the author all the way back to square one. In short, writing an opinion is a tough, delicate, exacting, time-consuming process. Circuit judges devote something like half their time, and half the time of their clerks, to cases in which they write opinions, dissents or concurrences. (Attached as an exhibit is an article titled How To Write It Right by Fred Bernstein, one of my former law clerks. Fred discusses how it=s not unusual to go through 70-80 drafts of an opinion over a span of several months.)

Once an opinion is circulated, the other judges on the panel and their clerks scrutinize it very closely. Often they suggest modifications, deletions or additions. Judges frequently exchange lengthy inter-chambers memoranda about a proposed opinion. Sometimes, differences can=t be ironed out, precipitating a concurrence or dissent. By contrast, the phrasing (as opposed to the result) of an unpublished disposition is given relatively little scrutiny by the other chambers; dissents and concurrences are rare.

Opinions take up a disproportionate share of the court=s time even after they are filed. Slip opinions are circulated to all chambers and many judges and law clerks review them for conflicts and errors. Petitions for rehearing en banc are filed in about half the published cases. Off-panel judges frequently point out problems with opinions, such as conflicts with circuit or Supreme Court authority. A panel may modify its opinion; if it does not, the objecting judge may call for a vote to take the case en banc. In 1999, there were 44 en banc calls in our court, 21 of which were successful.

Successful or not, an en banc call consumes substantial court resources. The judge making the call circulates one or more memos criticizing the opinion, and the panel must respond. Frequently, other judges circulate memoranda in support or opposition. Many of these memos are as complex and extensive as the opinion itself. Before the vote, every active judge must consider all of these memos, along with the panel=s opinion, any separate opinions, the petition for rehearing and the response. The process can take months to complete.

If the case does go en banc, eleven judges must make their way to San Francisco or Pasadena to hear oral argument and confer. Because the deliberative process is much more complicated for a panel of eleven than for a panel of three, hammering out an en banc opinion is even more difficult and time-consuming than writing an ordinary panel opinion.

Now consider the numbers. During calendar year 1999, the Ninth Circuit decided some 4500 cases on the merits, approximately 700 by opinion and 3800 by unpublished disposition. Each active judge heard 450 cases as part of a three-judge panel and had writing responsibility in a third of those cases. That works out to an average of 150 dispositions B 20 opinions and 130 unpublished dispositions B per judge. In addition, each of us was required to review, comment on, and eventually join or dissent from 40 opinions and 260 unpublished dispositions circulated by other judges with whom we sat.

Writing twenty opinions a year is like writing a law review article every two and a half weeks; joining forty opinions is like commenting on an article written by someone else nearly once every week. It=s obvious just from the numbers that unpublished dispositions get written a lot faster B about one every other day. It=s also obvious that explaining to the parties who wins, who loses and why takes far less time than preparing an opinion that will serve as precedent throughout the circuit and beyond. We seldom review unpublished dispositions of other panels or take them en banc. Not worrying about making law in 3800 unpublished dispositions frees us to concentrate on those decisions that will affect others besides the parties to the appeal.

If unpublished dispositions could be cited as precedent, conscientious judges would have to pay much closer attention to their precise wording. Language that might be adequate when applied to a particular case might well be unacceptable if applied to future cases raising different fact patterns. And while three judges might all agree on the outcome of the case before them, they might not agree on the precise reasoning or the rule that would be binding in future cases if the decision were published. Unpublished concurrences and dissents would become much more common, as individual judges would feel obligated to clarify their differences with the majority, even where those differences had no bearing on the case before them. In short, we would have to start treating the 130 unpublished dispositions for which we are each responsible and the 260 unpublished dispositions we receive from other judges as mini-opinions. We would also have to pay much closer attention to the unpublished dispositions written by judges on other panels B at the rate of ten per day.

Obviously, it would be impossible to do this without neglecting our other responsibilities. We write opinions in only 15% of the cases already and may well have to reduce that number. Or, we could write opinions that are less carefully reasoned. Or, spend less time keeping the law of the circuit consistent through the en banc process. Or, reduce our unpublished dispositions to one-word judgment orders, as have other circuits. None of these is a palatable alternative, yet something would have to give.

Do We Give Short Shrift to Cases Decided by Unpublished Dispositions?

The answer to this question is no. Much of the time spent in deciding a case is not reflected in the length or complexity of the disposition: we read briefs, review the record, read the applicable authorities. All this behind-the-scenes work goes into every case and necessarily takes a substantial amount of time. How much? There is no set amount. Some cases have a large record, yet have a dispositive issue B such as a jurisdictional defect B right near the surface. Others require a deeper examination before a dispositive issue is identified, although in the end, the resolution may be quite straightforward. The written dispositions in both cases may be short, they may look quite similar in structure and detail, yet they reflect very different time commitments.

Writing up an unpublished disposition is infinitely easier than writing a published opinion. To begin with, the facts need not be recited in detail because the parties to the dispute B the only ones for whom the disposition is intended B already know them. Nor is it important to be terribly precise in phrasing the legal standard announced, or providing the rationale for the decision. Most importantly, the judge drafting the disposition need not ponder how the disposition will be applied and interpreted in future cases presenting slightly different facts and considerations. The time B often a huge amount of time B that judges spend calibrating and polishing opinions need not be spent in cases decided by an unpublished disposition that is intended for the parties alone. Is this time taken away from the case? Is this an illegitimate shortcut? Not at all, because when judges do write opinions, much of the time they spend in the drafting process doesn=t go toward actually deciding the case, but rather to making the reasoning consistent with the existing body of circuit caselaw and useful for other decisions in the future.

Lawyers sometimes darkly suggest that unpublished dispositions make up a secret body of law wholly at odds with our published decisions B that unpublished dispositions mark out a zone where no law prevails, but only the predilections and preferences of the judges. We have discussed this among the judges of my court and are, frankly, baffled by the claim because none of us perceives that this is what we are doing. These claims are always made with reference to some unnamed earlier case; lawyers seldom, if ever, present concrete evidence of lawlessness in unpublished dispositions to back up their claims. This is surprising because if the practice were happening with any frequency, the losing lawyers would have every incentive to make a fuss about it.

Nevertheless, we have worried about claims like these, and so in recent years we have taken two initiatives to help discover whether unpublished dispositions are, in fact, in wholesale, lawless conflict with published precedents. First, in February and March 2000 we distributed a memorandum to all district judges, bankruptcy judges, magistrate judges, lawyer representatives, senior advisory board members, and law school deans within the Ninth Circuit, as well as other members of the academic community, seeking information on unpublished dispositions that conflicted with other published or unpublished decisions. The memorandum was also posted on the court=s website. Responses were collected by e-mail, fax, and a response form at the website. Only six responses were received. Of these, we found two to be meritorious and, despite our instructions, both responses identified conflicts between two published Ninth Circuit decisions B conflicts of which we were already aware. No one identified an unpublished disposition that conflicted with a published opinion or with another unpublished disposition.

Second, for a 30-month period beginning July 2000, we relaxed the court=s rules barring citation of unpublished dispositions to allow their citation in requests for publication and in petitions for rehearing. For the first nine months, court staff examined all requests for publication filed. Only fifteen requests for publication were received, and none of these identified a legitimate conflict among unpublished dispositions or published opinions.

We are certainly not infallible, and I will not try to persuade this subcommittee that we never make a mistake when we decide 4500 cases a year. But I can state with some confidence that the sinister suggestion that our unpublished dispositions conceal a multitude of injustices and inconsistencies is simply not borne out by the evidence. I feel so confident of this point, having participated in rendering thousands of these dispositions myself, that I would welcome an audit or evaluation by an independent source.

How About That Claim of Unconstitutionality?

Two years ago, in Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot on reh=g en banc, 235 F.3d 1054 (8th Cir. 2000), Judge Richard Arnold of the Eighth Circuit set this area of law ablaze by holding that stare decisis in the strict form B an obligation to follow earlier opinions of the court, published or not B was part and parcel of the Article III judge=s obligation to apply the law. If Judge Arnold were correct, this would mean that every one of our 3800 yearly unpublished dispositions is binding on every federal judge in our circuit. Lawyers would have a field day digging for superficial inconsistencies or imprecisions in wording, and we=d do little but hear cases en banc to settle claimed conflicts of authority.

Fortunately, Anastasoff turned out to be a false alarm. Judge Arnold is one of the ornaments of the federal judiciary, a judge widely respected for his erudition and wisdom. But even Homer nods, and Judge Arnold took a big nod on this one. While his argument in Anastasoff has superficial appeal, closer examination exposes its flaws. I reached the opposite conclusion in an opinion I wrote by the name of Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), a copy of which is attached as an exhibit. More recently, attorney Thomas Healy thoroughly examined Judge Arnold=s constitutional claim in an article titled Stare Decisis as a Constitutional Requirement, 104 W. Va. L. Rev. 43 (2001). Mr. Healy concluded, as I had, that the historical record comes nowhere near supporting Judge Arnold=s thesis, and in fact refutes it. Mr. Healy=s article is also attached as an exhibit.

Finally, some legal scholars have suggested that there may be First Amendment problems with a citation ban. No case of which I am aware has addressed this claim, but it seems implausible on its face. As noted, our rule doesn=t prevent people from talking about unpublished cases. Its prohibition is limited to what lawyers may say in their briefs and arguments in court. There are a multitude of restrictions on what lawyers may say in court, none of which raises First Amendment concerns. Lawyers may not, for example, knowingly leave the Anos@ and Anots@ out of the quotations in their briefs, or cite to evidence that=s not in the record, or fail to cite applicable binding authority of which they are aware. A knowing violation of any of these rules may result in sanctions. Attempting to defraud the court in one=s pleadings is the kind of conduct that may be punished, even if similar out-of-court conduct may not be. The prohibition against citation of unpublished dispositions addresses a specific kind of fraud on the deciding court B the illusion that the unpublished disposition has sufficient facts and law to give the deciding court useful guidance. As the Massachusetts Appeals Court noted in Lyons v. Labor Relations Commission, 476 N.E.2d 243 (Mass. App. 1985), unpublished dispositions can be quite misleading to those other than the parties to the case: A[T]he so called summary decisions, while binding on the parties, may not disclose fully the facts of the case or the rationale of the panel=s decisions. . . . Summary decisions, although open to public examination, are directed to the parties and to the tribunal which decided the case, that is, only to persons who are cognizant of the entire record.@ Id. at 246 n.7.

Are Federal Courts Unique in Prohibiting Citation to Unpublished Decisions?

The answer is emphatically no. The vast majority of state court systems restrict citation to unpublished decisions. Last year, an article in the Journal of Appellate Practice and Process provided a thorough catalogue of these rules at both the federal and state levels. Melissa M. Serfass & Jessie L. Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions, 3 J. App. Prac. & Process 251 (2001). (A copy of this article is attached as an exhibit, and a summary of its findings appears at the end of my statement.)

Their findings are very revealing. Thirty-eight states (plus the District of Columbia) restrict citation to unpublished opinions to some degree; by far the largest number (35) have a mandatory prohibition that is phrased much like the Ninth Circuit=s rule. (Like the Ninth Circuit, some of these states permit citation for purposes of establishing res judicata or law of the case.) A typical rule, that of Alaska, reads as follows: ASummary decisions under this rule are without precedential effect and may not be cited in the courts of this state.@ Alaska R. App. P. 214(d). Only nine states have rules explicitly authorizing citation of unpublished cases as precedent, and only five have no rules at all on the matter. (The total comes out to fifty-two, plus the District of Columbia, because two states explicitly authorize citation of unpublished opinions as to some courts and explicitly deny it as to unpublished opinions of others.) Two states, California and Tennessee, have provisions that authorize the state=s highest court to Ade-publish@ opinions of the lower courts, thereby depriving them of precedential authority and making them non-citeable.

The state courts, of course, hear vastly more cases in the aggregate than do the federal courts. That the overwhelming majority of states have adopted a prohibition against citation of, or reliance on, a large number of appellate decisions is significant in two respects. First, it shows that this is a legitimate and widely accepted practice in the legal community nationwide. Second, it discloses that many court systems in addition to the federal courts have found the non-publication/non-citation practice to be an important tool in managing the development of a coherent body of caselaw.

Are There Separation of Powers Concerns?

While I welcome this subcommittee=s interest in the matter and the opportunity to address the issue, I do want to raise a red flag about the appropriateness and wisdom of congressional intervention. What lies at the heart of this controversy is the ability of appellate courts to perform one of their core functions, namely, overseeing the development of the law within their jurisdiction. The fact that so many state and federal courts have nonpublication rules and related prohibitions against citation suggests that this is an area of uniquely judicial concern.

There is not much recent authority on point, but almost 140 years ago the new state of California tried to impose, by statute, a requirement that Aall decisions given upon an appeal in any Appellate Court of this State, shall be given in writing, with the reason therefor, and filed with the Clerk of the Court.@ California Supreme Court Justice Stephen Field B the very same Justice Field who later sat on the United States Supreme Court and wrote that case we all remember so well from law school, Pennoyer v. Neff, 95 U.S. 714 (1877) B would have none of it. Speaking for a unanimous court, he held the law unconstitutional:

[The statute] is but one of many provisions embodied in different statutes by which control over the Judiciary Department of the government has been attempted by legislation. To accede to it any obligatory force would be to sanction a most palpable encroachment upon the independence of this department. If the power of the Legislature to prescribe the mode and manner in which the Judiciary shall discharge their official duties be once recognized, there will be no limit to the dependence of the latter. If the Legislature can require the reasons of our decisions to be stated in writing, it can forbid their statement in writing, and enforce their oral announcement, or prescribe the paper upon which they shall be written, and the ink which shall be used. And yet no sane man will justify any such absurd pretension, but where is the limit to this power if its exercise in any particular be admitted?

The truth is, no such power can exist in the Legislative Department, or be sanctioned by any Court which has the least respect for its own dignity and independence. In its own sphere of duties, this Court cannot be trammeled by any legislative restrictions. Its constitutional duty is discharged by the rendition of decisions. The Legislature can no more require this Court to state the reasons of its decisions, than this Court can require, for the validity of the statutes, that the Legislature shall accompany them with the reasons for their enactment. The principles of law settled are to be extracted from the records of the cases in which the decisions are rendered. The reports are full of adjudged cases, in which opinions were never delivered. The facts are stated by the Reporter, with the points arising thereon, and are followed by the judgments rendered, and yet no one ever doubted that the Courts, in the instances mentioned, were discharging their entire constitutional obligations. The practice of giving the reasons in writing for judgments, has grown into use in modern times. Formerly, the reasons, if any were given, were generally stated orally by the Judges, and taken down by the Reporters in short hand.

In the judicial records of the King=s Courts, Athe reasons or causes of the judgment,@ says Lord Coke, Aare not expressed, for wise and learned men do, before they judge, labor to reach to the depth of all the reasons of the case in question, but in their judgments express not any; and, in truth, if Judges should set down the reasons and causes of their judgments within every record, that immense labor should withdraw them from the necessary services of the commonwealth, and their records should grow to be like Elephantini Libri, of infinite length, and, in mine opinion, lose somewhat of their present authority and reverence; and this is also worthy for learned and grave men to imitate.@

The opinions of the Judges, setting forth their reasons for their judgments, are, of course, of great importance in the information they impart as to the principles of law which govern the Court, and should guide litigants; and right-minded Judges, in important cases B when the pressure of other business will permit B will give such opinions. It is not every case, however, which will justify the expenditure of time necessary to write an opinion. Many cases involve no new principles, and are appealed only for delay. It can serve no purpose of public good to repeat elementary principles of law which have never been questioned for centuries. The Court must therefore exercise its own discretion as to the necessity of giving an opinion upon pronouncing judgment, and if one is given, whether it shall be orally or in writing. In the exercise of that discretion the authority of the Court is absolute. The legislative department is incompetent to touch it.

Houston v. Williams, 13 Cal. 24, 25-26 (1859) (citations omitted). Does this state the law today? I can offer no advisory opinion, but I do believe that Justice Field=s observations are worthy of careful consideration. Perhaps the best approach is not to test the issue by staying far clear of a confrontation between the judicial and legislative branches.

What About The Law Of Unintended Consequences?

It is the sad experience of mankind that often, in trying to make things better, we do something that has exactly the opposite effect. Unpublished, unciteable appellate decisions play an important role in the management of our dual responsibilities of deciding a multitude of cases, while keeping the law clear and consistent. Would it make things better if this tool were removed from the judicial arsenal?

To answer this question, I ask you to imagine a different kind of rule Congress might pass. Let=s say Congress decided that we simply didn=t have enough uniformity in the application of the law, and the reason was that the United States Supreme Court wasn=t issuing enough opinions. So, in order to improve things, Congress passed a law that required the Supreme Court to grant review to, and decide, 1600 cases a year, rather than the 80 or so it decided this past Term. This would be only 178 case dispositions per Justice per year, less than half the number of the average Court of Appeals judge.

Assuming the Justices disagreed with Justice Field and did not see the law as an unconstitutional encroachment on their authority, what would be the consequences? It=s unlikely that this enactment would cause the Justices to work twenty times harder to come up with twenty times the number of published opinions equal in caliber to their current opinions. My guess is that they=d write something in 1600 cases, but in the vast majority, it would not be something that was very good or very useful. In order to avoid having an avalanche of insignificant cases creating unintended conflicts and uncertainties, they would write Apublished@ opinions that have very little useful content B akin to very abbreviated dispositions or judgment orders B that contain little more than the word AAffirmed.@

Something like this will, I suspect, happen if courts of appeals are forced to accord precedential value to their unpublished dispositions: We would have a tendency to say much less in our unpublished dispositions, in order to avoid having them interfere with our principal mechanism for setting circuit law, namely, the published opinions.

And this would be too bad for the parties to those appeals. Under the current system, they at least get a reasoned disposition of some sort, a statement of their facts, however brief, and a genuine effort at explaining to them why they won or lost. If those words, now directed to the parties who know a lot about the case, must also be made usable by the multitudes who do not, we will simply say less, in order to protect the integrity and stability of our circuit law from those who would misconstrue or twist it.

Conclusion

The topic the subcommittee has chosen for its oversight hearings is certainly a timely one. As Judge Alito has suggested, we in the judiciary are in the process of reevaluating our rules. I hope, in the end, we will leave well enough alone, and allow each court to decide this issue according to its own customs and needs. However, whatever happens will be the action of the judiciary, taken after careful reflection and with full knowledge of the institutional constraints under which we operate. I hope that whatever rule we adopt B whether to stay with the current local option or to adopt a national rule B the political branches of government will accept and respect it.

Citation Rules in State Courts

Source: Melissa M. Serfass & Jessie L. Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions, 3 J. App. Prac. & Process 251 (2001).

Notes:

* No entry may indicate that state requires its Supreme Court to publish all opinions and/or orders

** No entry may indicate that state has no intermediate appellate court

+ Exceptions for res judicata, collateral estoppel, law of the case, etc.

% Exceptions for publication requests and petitions for rehearing.

$ All appellate opinions are published. Citation of unpublished out-of-state opinions is allowed.

# Court of Criminal Appeals is citeable; Court of Civil Appeals is not.

Sample Language:

Shall Not Be Cited:

ASummary decisions under this rule are without precedential effect and may not be cited in the courts of this state.@

Alaska R. App. P. 214(d).

Should Not Be Cited:

ACases affirmed without opinion by the Court of Appeals should not be cited as authority.@

Or. R. App. P. 5.20(5).

May Be Cited:

AUnreported opinions or orders may be cited, but a copy must be provided.@

Del. Sup. Ct. R. 14(b)(vi)(4).

********************

STATEMENT OF JUDGE SAMUEL A. ALITO, Jr.,

ON BEHALF OF

THE JUDICIAL CONFERENCE OF THE UNITED STATES

JUNE 27, 2002

Mr. Chairman and members of the subcommittee, I am Samuel A. Alito, Jr., judge of the United States Court of Appeals for the Third Circuit. I appear today on behalf of the Judicial Conference of the United States, which is the policy-making arm of the federal courts. I chair the Advisory Committee on the Federal Rules of Appellate Procedure. Thank you for the opportunity to share the views of the federal judiciary on "unpublished" courts of appeals opinions.

Court of appeals decisions are and always have been public. But not all opinions have been reported and included in printed volumes issued by the major legal publishers. Traditionally, major legal printers published only opinions that were submitted for that purpose by the judges authoring them. About forty years ago, the federal judiciary instituted a policy discouraging the publication of all "non-precedential" opinions in order to cope with the exponentially expanding volume of litigation. This policy was adopted for a variety of reasons, including to conserve opinion-writing time for precedent-setting decisions, to preserve the consistency and quality of precedential opinions, and to save time and money for attorneys, who would otherwise find it necessary to research a hugely increased body of case law and to pay for a great many additional volumes of case reports. Presently, most final decisions of the courts of appeals are "unpublished" C that is, they are not printed in the Federal Reporter.

Soon after the "unpublished-opinions" policy took effect, courts of appeals developed local procedural rules to restrict the citation of "unpublished" opinions. This was done in large part for the purpose of dispelling any suspicion that institutional litigants and others who might have ready access to collections of unpublished opinions had an advantage over other litigants without such access. Thus, lawyers were prevented from citing "unpublished" opinions in their briefs primarily as a matter of fairness. With the advent of computer assisted legal research, however, the reference to "unpublished" opinions is now something of a misnomer since the overwhelming majority of opinions are now readily available to the public, often at minimal or no cost because they are posted on court web sites and are now printed in a new series of casebooks called the Federal Appendix that is available in most law libraries.

Although the justification for prohibiting citation to "unpublished" opinions as a matter of fairness may no longer be viable because most opinions are available electronically, several courts of appeals continue for other reasons to prohibit or otherwise limit citation to "unpublished" opinions. They remain concerned that the problems that prompted the adoption of the Judicial Conference=s "unpublished-opinions" policy may be exacerbated by a policy permitting universal citation. The debate engendered over the appropriate use and precedential value of "unpublished" opinions implicates important competing interests, and the federal judiciary continues to study this subject carefully and to confer with the bar. The effort has now focused on a draft rule amendment governing "unpublished" opinions that has been proposed by the Department of Justice and will be considered by the Advisory Committee on the Federal Rules of Appellate Procedure at its November 2002 meeting.

History of Judiciary Actions Regarding "Unpublished" Opinions

The federal courts of appeals have a longstanding practice of designating certain decisions as "unpublished opinions." Faced with an overwhelming and growing volume of reported court decisions, the Judicial Conference in 1964 began to encourage judges to report only opinions that were of general precedential value. In 1972, the Conference asked each court to develop a formal publication plan restricting the number of opinions being reported. The Federal Judicial Center surveyed the courts and recommended criteria to help them designate which opinions should be forwarded to be published. By 1974, each court of appeals had a plan in operation.

By the 1980's and 1990's, one of the justifications for limited publication no longer applied, because new technologies facilitated electronic storage and easy retrieval of immense quantities of data. In 1990, the Federal Courts Study Committee recommended that the Judicial Conference establish an ad hoc committee to study whether technological advances gave reason to reexamine the policy on "unpublished" opinions. The committee did not endorse a universal publication policy, but it noted that "non-publication policies and non-citation rules present many problems." The Conference did not act on that recommendation.

During the past decade, amendments to the rules have been periodically proposed to the Advisory Committee on the Federal Rules of Appellate Procedure to establish uniform procedures governing "unpublished" opinions. In 1998, the former chair of the advisory committee surveyed the chief circuit judges and received a virtually unanimous response that uniform rules were unnecessary. In January 2001, the Solicitor General, on behalf of the Department of Justice, proposed specific language amending the Federal Rules of Appellate Procedure to provide for uniform procedures governing the citation of unpublished opinions. The committee is now studying the Justice Department proposal.

Limiting Publication of Opinions

"(A)ppellate opinions serve essentially two functions: to resolve particular disputes between litigants and to clarify or redefine the law in some manner."

Close Up until the 1960's, the volume of appellate opinions was sufficiently manageable to allow careful writing for virtually all decisions. The well-documented explosion in the appellate workload since then has been thought by the judiciary to present compelling doctrinal and practical reasons to limit the "publication" C that is, the public dissemination C of opinions.

First, the judiciary has been concerned that important precedential opinions will be obscured by the thousands of opinions that are issued each year by the courts of appeals to decide cases that do not present any questions of significant precedential value. Opinions dealing with the easy application of established law to specific facts have little use as precedent for other litigants or posterity. A brief written opinion is all that is necessary to inform the litigants of the outcome and the reasons for it.

Second, the judiciary has been concerned that the universal publication of opinions would either produce a deterioration in the quality of opinions or impose intolerable burdens on judges in researching and drafting opinions. Drafting an opinion that is to be applied as a precedent in future cases is a time-consuming task. All of the relevant facts and all of the relevant aspects of the procedural history of the case must be set out. In addition, the discussion of all pertinent legal authorities and the holding must be phrased so that the opinion will not be misunderstood. The opinion must be crafted with the recognition that some future litigants may seize on any ambiguity in order to achieve an unwarranted benefit or escape the opinion=s force. It would be virtually impossible for the courts of appeals to keep current with their case loads if they attempted to produce such an opinion in every case. Responsible appellate judges must devote more time to an opinion that changes the law or clarifies it in an important way (and may thus affect many litigants in future cases) than to an opinion that simply applies well-established law to specific facts (and thus affects solely the litigants at hand). This is not to say, of course, that the decision in the latter type of case is unimportant or that the decision may be made with less care. But because the primary function of the opinion in such a case is to inform the parties of the basis for decision, not to serve as a guide for future litigation, the opinion need not be as detailed or formal.

Most of the courts of appeals have a local rule governing the citation of "unpublished" or "non-precedential" opinions. Many of the courts initially prohibited citation of such opinions because, as mentioned, they were largely unavailable to the public. Although technology has mooted the "fairness" justification for prohibiting citation to "unpublished" opinions, some courts believe that limiting citation is useful for other reasons. Three of the circuits generally forbid citation, except under very limited circumstances (First, Seventh, and Ninth circuits). Others either generally permit citation or allow citation for limited purposes, such as to establish res judicata or collateral estoppel (D.C., Third, Fourth, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits). Although permitting citation, some of these local rules explicitly state that "unpublished" opinions lack precedential value. Still others recognize that unpublished opinions may have persuasive value (Fifth, Eighth, Tenth, and Eleventh Circuits). All courts of appeals agree that unpublished opinions are not binding precedent. A few courts of appeals have rules permitting counsel to recommend to the court that it "publish" a particular opinion.

A variety of recent developments have led courts of appeals to reexamine and in some instances alter their rules and practices regarding "unpublished" or non-precedential opinions. As noted, the vast majority of non-precedential opinions issued by the courts of appeals are now readily available to attorneys and the public. In the past few years, judicial decisions and scholarly articles have begun to explore the question whether the Constitution limits the authority of the federal courts to issue non-precedential opinions. "

See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) (holding local ruleunconstitutional), vacated en banc, 235 F.3d 1054 (8th Cir. 2000). A subsequent Ninth Circuitopinion found that a local rule prohibiting citation of an unpublished opinion was notunconstitutional. Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001). See also, e.g., Thomas R.Lee and Lance S. Lehnhof, The Anastasoff Case and the Judicial Power to AUnpublish@Opinions, 77 Notre Dame L. Rev. 135 (2001); John Harrison, The Power of Congress over theRules of Precedent, 50 Duke L. J. 503 (2000).

Close The judiciary is also acutely aware that past practices regarding non-precedential opinions have led to misperceptions and that some scholars, practitioners, and others have voiced strong arguments against the continuation of some of those practices.

Present Work of the Appellate Rules Committee

The Department of Justice proposal to which I referred emerged from this backdrop. As noted, the Department of Justice has proposed an amendment to the Federal Rules of Appellate Procedure governing unpublished opinions. It is deliberately narrow and permits citation to an "unpublished" opinion only if: (1) it directly affects a related case, e.g., by supporting a claim of res judicata or collateral estoppel, or (2) "a party believes that it persuasively addresses a material issue in the appeal, and that no published opinion of the forum court adequately addresses the issue." The proposal also requires that a copy of the "unpublished" opinion be attached to any document in which it is cited. The proposal takes no position on the precedential value of an "unpublished" opinion and does not dictate whether or to what extent a court should designate opinions as "unpublished." The Department of Justice continues to endorse the proposal. As a litigant in all the circuits, it believes that a uniform national rule would be beneficial.

In response to the Justice Department proposal, the advisory committee undertook a review of the extensive number of articles and surveys on the subject and found that these express conflicting views. In accordance with its past practices, the committee surveyed the various courts of appeals. The responses from the courts of appeals manifested no consensus on the proposal advocated by the Justice Department. Unlike earlier surveys, however, several courts expressed no objection to implementing a rule on the citation of unpublished opinions. Others continued to express strong reservations. The complexity and competing interests were summed up in one response, which concluded that "the difficulty is that the decisions as to whether and when to publish, what kind of explanation to give, and what force should be given to a limited or no citation opinion are bound up together and are substantially affected by conditions that may vary from one circuit to another." The concern is shared by others who fear that permitting citation to "unpublished" or "non-precedential" opinions will inexorably cause judges to try to draft those opinions in the same manner as precedential opinions and that this will substantially disrupt the efficient functioning of the courts.

The Advisory Committee on Appellate Rules discussed the Justice Department proposal at its last meeting in April 2002 and will again consider the Department of Justice proposal at its November 2002 meeting.

Conclusions

The subject of unpublished opinions raises many difficult issues that must be addressed on several different levels. At the same time, the practices governing "unpublished" opinions continue to evolve in the respective courts of appeals, with a majority permitting citation under certain circumstances. For example, the D.C. Circuit very recently amended its local rules to eliminate a former prohibition against citing unpublished opinions. It now permits citation "as precedent" of any decision issued by the court after January 1, 2002.

The doctrine of precedent (stare decisis) was established as part of the common law, and the development of this doctrine has long been committed primarily to the stewardship of the Third Branch. As part of its "unpublished-opinions" policy, the Judicial Conference has deliberately promoted experimentation by giving the respective courts of appeals local discretion in this area. Whether the benefits of uniform procedures governing citation of opinions outweigh the flexibility of local procedures is subject to no easy answer. The federal judiciary is actively engaged in studying the experiences of the courts and all the implications regarding the appropriate use of "unpublished" opinions.

We welcome the oversight of Congress and look forward to any new information that it may gather on this important issue. Thank you again for the opportunity to express the judiciary's views.