Unpublished Opinions that Cannot be Cited

A growing threat to the rule of law

Eugene has raised a fascinating subject with respect to unpublished memorandum opinions that cannot be cited. It is not clear to me that the Article III federal courts have the power, as an original matter, to issue opinions that cannot be cited, are not binding precedent, and that are therefore somewhat unconstrained by the rule of law.

When I clerked on the Second Circuit and the D.C. Circuit from 1983 to 1985, memorandum opinions accounted for only 20% of the docket. Today, in 2024, memorandum opinions account for a stunning 90% of almost all 12 of the Federal Circuit Courts of Appeal. When I was a law clerk, memorandum opinions were drafted by law clerks, received cursory review form an Article III judge, and were an exception to the norm. The fact that 90% of the Federal Circuit Courts of Appeals are now memorandum opinions means that those courts have only a discretionary docket, like the U.S. Supreme Court, and can pick and choose which cases they want to make law with.

All of this reflects the fact that there has not been an increase in the number of lower court judges since 1993, and, since then, the docket of the lower federal courts has tripled. Partisan fights over the appointment of new judges explain the failure to get a new judgeship bill passed by a 60 vote margin by obtaining cloture in the Senate. Moreover, the current sitting 179 Circuit Court of Appeals judges on active duty do not want new federal judgeships created because it would diminish their status to triple the size of the lower federal court judges to match the tripling in caseload of the lower federal courts.

I fear that we are stuck with this phenomenon, but the evils it produces ought not go unnoticed. A judge who can issue an opinion in a case that is not citable is not bound by precedent or the expectations of the parties in deciding each case on its own facts, unbound by the rule of law, and probably unlikely to be reversed by a Supreme Court that only heard 60 cases this year out of the 40,061 cases in 2023.

Comments

[Davy C]

>It is not clear to me that the Article III federal courts have the power, as an original matter, to issue opinions that cannot be cited, are not binding precedent, and that are therefore somewhat unconstrained by the rule of law.

So district courts are unconstitutional? It would seem odd to say such a sweeping statement only applies to appeals courts.

[Rossami]

That’s not even close to what Prof Calabresi said.

[Noscitur a sociis]

It is not clear to me that the Article III federal courts have the power, as an original matter, to issue opinions that cannot be cited

The question seems a bit academic, since any possible power to that effect was removed almost 20 years ago with the passage of Fed. R. App. P. 32.1.

[JesusHadBlondeHairBlueEyes]

To save others from looking up the rule:

Rule 32.1 Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

[Dan Schiavetta]

For a moment I was relieved to see Prof. Calabresi getting back into an area of his competence, but . . .

[ah....Clem]

Well, he seems to be correct on both points, unpublished opinions and the increased workload on the district courts. But, I'm not seeing that the two are connected.

Is it that much more work to tick the unpublished checkbox? Or is it that the judges want to write better opinions if it's going to be published?

[David Nieporent]

The question seems a bit academic, since any possible power to that effect was removed almost 20 years ago with the passage of Fed. R. App. P. 32.1.

That's only partially true; that rule wasn't retroactive. So unpublished decisions issued before 2007 are still verboten in some (but not all!) Circuits.

[CommentMonkey]

But the rule is written to apply to courts rather than litigants. It wouldn't have made any sense for the rule retroactively to forbid courts to designate their opinions as non-citable. The way it is phrased, it has to be prospective only.

Of course the Rule could have continued: "and any such designations prior to the the passage of this rule shall be inoperative" or something like that. But I think one way of reading the rule is that it represents a recognition that judges/courts never had the authority to dictate whether and how its decisions are cited. It is simply telling them not to claim such authority in the future.

It would be interesting to know whether a federal circuit court opinion, issued after passage of Rule 32.1, has ever called out a litigant for citing a pre-2007 unpublished opinion.

[David Nieporent]

It wouldn’t have made any sense for the rule retroactively to forbid courts to designate their opinions as non-citable. The way it is phrased, it has to be prospective only.

It's not the designation that's at issue; it's the effect of the designation. All they had to do (if they wanted to) was eliminate the second criterion: "(ii) issued on or after January 1, 2007." Just delete those words.

(Not saying whether it's a good idea or not. Just saying that they could've done so, quite simply.)

[LawTalkingGuy]

He’s right about the general point (although not the particulars as others have noted) that the unpublished/published distinction is a bad practice, but I don’t think it’s as apocalyptic as he makes it sound. I don’t think the rule of law is going to die because they didn’t publish yet another habeas denial or social security appeal, or some contract dispute in diversity. And I don’t think they’re trying to get the law wrong in those cases either, it’s just probably not written super well. And indeed, I also think publication can sometimes signal the opposite of a good considered decision. Look at the Fifth Circuit, if it’s published and they’re proud of it, you are likely in for some batshit hack nonsense that even this SCOTUS will be skeptical of.

[Sarcastr0]

Goes to show, peg the drama meter too often and it'll get stuck that way.

[JesusHadBlondeHairBlueEyes]

Great comment! Really added to the conversation!!

[Martinned2]

As a general rule of thumb I am skeptical that any practice shared by the US and the UK will be unconstitutional, because that usually suggests that it is a practice that predates the US declaration of independence.

[JamesMarkels]

Okay, but can we see the argument for why nonpublished decisions are good? It seems clear to me that appellate judges have decided they are because they are using them more. Some possible reasons:

1. Since intermediate courts of appeal usually have to hear every case, they get a bunch of silly cases with sometimes weird facts. "Bad facts make bad law," it is said, so don't let those cases create bad law. Counter: why not simply state that the instant decision is narrow and only as applied to this case? Or issue a one-sentence opinion stating that the appellate court finds no error and affirms? There are a bunch of ways to make a decision "unciteable" without creating a category of "unpublished" opinions.

2. It's harder to appeal an unpublished decision from an intermediate court, as it tells the highest court that the case isn't worth their time. This helps the highest appellate court manage its discretionary docket. Counter: why is that the intermediate judges' business? Of course they don't like being reversed, but they should not use this as a signal to avoid reversal.

3. An opinion that is to be cited to requires extra care in drafting, to ensure that the principles it is cited for will not be misconstrued. Intermediate appellate courts are too busy to draft every decision with that level of care (most being drafted by young clerks and given passing scrutiny by the judges). Counter: Is it really that hard?

4. Applying facts to well-established law is not cite-worthy. Only decisions that make new law is cite-worthy. Counter: not to trial lawyers, who often are trying to argue that their facts are the same as a case that resolved in their favor.

5. Intermediate appellate courts produce far more opinions than the highest level court. If those are all citable, then that court becomes more important than the highest level court as the source of legal support. That creates a backwards situation. Counter: A decision from the highest court will still carry more weight, and most intermediate opinions will simply apply those opinions to the facts before them since most first-level appeals are relatively straightforward.

6. Intermediate appellate courts are mainly responsible for error correction. The highest court is responsible for resolving novel legal issues or new areas of law or conflicts. Most of the decisions by the intermediate court are humdrum error issues. Counter: see #2 and #4 above.

Are there other arguments? Have appellate judges weighed in on this?

[Flink]

An excellent point. I can’t speak to federal rules, but California Rules of Court 8.1105 (c) has a list of reasons to certify an appellate decision for publication. If a court decides an opinion does not meet those criteria it may label the opinion as not certified for publication.

Those criteria are why one of the commenters below notes the high percentage of criminal appeals opinions that are not citable. Having worked as appointed counsel for criminal defendants after law school, I saw many opinions in my cases that made no new law, or raised any genuine ambiguities, etc. because they were fairly routine and non controversial, but still deserved that step in the due process of law.

I’d have liked to have had a couple of them published for purely selfish reasons, but completely understand the rationale for the rules being discussed here.

[Mr. Bumble]

Is this a case of trust us, we know what we’re doing, just don’t quote us on it?

[Voize]

There is a point to be made but not the one Prof. Calabresi claims. A judge who issues an opinion that is not binding precedent is hardly "unbound by the rule of law". That is true even if you narrow the discussion to federal appeals courts, a distinction Calabresi's proclamation didn't make.

I can accept some of the article - the proportion of nonprecedential opinions has grown significantly, as a means of avoiding establishing bad precedent while dealing with growth in the nondiscretionary workload. It's just a big step from there to a collapse of the rule of law.

[Aturny]

In CA, about 95% of criminal opinions are unpublished. I've run across unpub'd cases that would help my clients doing serious time but can't cite them. I can cite federal and other states' unpub'd opinions, so it seems absurd that I can't even cite my own state's cases as persuasive authority to show that another panel of their judicial colleagues, or even that panel in another case, agreed with me on the issue I'm raising. I'm considering raising a due process challenge next time but need to do the research to see if it's viable.

[Mr. Bumble]

Guess stare decisis isn't all it's cracked up to be.

[Tabman]

In my state, unpublished intermediate appellate court decisions are all per curium (and are not binding precedent, but can be cited)---an authored opinion is always published.

I notice that in the Sixth Circuit, while a ton of opinions are unpublished, almost all of the unpublished opinions are authored.

Very few opinions are published in my state, which still maintains a state reporter, as well as the published opinions appearing in the West regional reporter. I have always thought the dramatic drop in published opinions over the years is at least partially driven by the cost of maintaining a state reporter system---the fewer published opinions, the lower the cost.

[CJColucci]

I practice in New York. Many years ago, the Second Circuit published an opinion establishing that Title VII does not apply to individuals, only to employing entities. The reasoning clearly implied that the other federal anti-discrimination statutes, like the ADA and the ADEA should be read the same way, and, sure enough, an unpublished Circuit opinion held as much soon after. But it was unciteable, and, for many years, district courts in the Circuit wrestled with the question as if it were an original matter, all saying that the Circuit had not weighed in. As it happened, what was obvious to the reader of the published opinion, and squarely held in the unpublished one, was ultimately what all the district courts decided, so no harm done, except for the unnecessary effort of reinventing the wheel. Eventually, the Circuit said the obvious in a published opinion.

By contrast, the state intermediate appellate court, known as the Appellate Division, insists on publishing every opinion. In a vast number of cases, diligent lawyers are forced to read dozens, even hundreds, of Appellate Division cases that mostly say little more than: “The Court of Appeals [New York’s highest court] held X in Smith v. Jones. This is like Smith v. Jones. Affirmed.” Yet you have to slog through them all in the often futile search for an Appellate Division case with enough factual detail and reasoned analysis to give you any more support than a simple citation to Smith v. Jones would have done.

Pick your poison.

[tkamenick]

"It is not clear to me that the Article III federal courts have the power, as an original matter, to issue opinions that cannot be cited, are not binding precedent,"

Can a court issue a ruling/decision without writing it as an opinion? You just answered your own question.