IS IT CONSTITUTIONAL TO BAN CITATION OF UNPUBLISHED DECISIONS ?

Anastasoff v. United States, 2000 WL 1182813 (8th Cir. Aug. 22, 2000)

SUMMARY: TWO COURTS OF APPEAL "DUKE IT OUT" ON THE QUESTION WHETHER THE CONSTITUTION PERMITS COURTS TO BAN CITATION OF PRECEDENTS THEY HAVE DEEMED "NON-PRECEDENTIAL." THE FILES INCLUDE:

1. SOME HISTORY ABOUT STARE DECISIS IN EARLY PENNSYLVANIA COURTS

2. ANASTASOFF V. UNITED STATES (JUDGE RICHARD ARNOLD FINDS STARE DECISIS TO BE PART OF ARTICLE III OF THE U.S. CONSTITUTION)

3. HART V. MASSANARI (JUDGE KOSINSKI OF THE NINTH CIRCUIT DISAGREES AND JUSTIFIES THE COURTS' NEED FOR THE NON-PUBLICATION, NON-CITATION RULE)

4.HEARINGS (THE MATTER REACHES CONGRESS)

5.TEXAS WEIGHS IN

OTHER SOURCES

Prof. Stephen Barnett has written an excellent essay on non-publication, non-citation. See "From Anastasoff to Hart to West’s Federal Appendix: The Ground Shifts Under no-Citation Rules", 4 J. App. Practice & Process 1 (2002). He reviews the current state of U.S. Court of Appeals’ rules on the matter, noting, inter alia, that the U.S. Court of Appeals for the District of Columbia abandoned its no-citation rule effective January 1, 2002 and permits citation of all unpublished opinions as precedent. The word "unpublished" now as to be abandoned with Online and Federal Appendix reporting. Prof. Barnett advocates that all precedents may be cited but ones with asterisks (formerly called "unpublished") carry only "persuasive" value. This solves the problem of an asterisked precedent (presumptively less considered) binding a panel; the alternative is to let a published panel decision overrule an asterisked one. Making asterisked precedents citable promotes "fairness, due process, public access, and respect for the law itself," while conforming to "a new technological reality that is transforming the terms of the debate." Id. at p. 25.

Also worth consulting is a student note: Kenneth Laretto, "Precedent, Judicial Power, and the Constitutionality of ‘No-Citation’ Rules in the Federal Courts of Appeal," 54 Stan. L. Rev. 1037 (2002). The student questions, as I do, whether "easy" cases exist in the numbers suggested by the volume (80% or so) of asterisked precedents. The student notes the critique, which I share, that no-citation rules "give judges too much discretion in deciding which cases do not merit publication." Id. at 1042. I also like Mr. Laretto’s point that the Article III judicial power does not grant courts the ability to "legislate" a case’s subsequent precedential effect." Id. at 1056.