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80–454 PDF 2002

UNPUBLISHED JUDICIAL OPINIONS

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, THE INTERNET, 

AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JUNE 27, 2002

Serial No. 82

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

HOWARD COBLE, North Carolina, Chairman

HENRY J. HYDE, Illinois 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia, Vice Chair

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

HOWARD L. BERMAN, California 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York

BLAINE MERRITT, Chief Counsel 

DEBRA ROSE, Counsel 

CHRIS J. KATOPIS, Counsel 

MELISSA L. MCDONALD, Full Committee Counsel 

ALEC FRENCH, Minority Counsel 

(III)

C O N T E N T S 

JUNE 27, 2002

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress From the State 

of North Carolina, and Chairman, Subcommittee on Courts, the Internet, 

and Intellectual Property .................................................................................... 1

The Honorable Howard L. Berman, a Representative in Congress From the 

State of California, and Ranking Member, Subcommittee on Courts, the 

Internet, and Intellectual Property .................................................................... 2

WITNESSES 

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 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 6

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

Ninth Circuit 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 11

Mr. Kenneth Schmier, Chairman, Committee for the Rule of Law 

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 21

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

Law 

Oral Testimony ..................................................................................................... 42

Prepared Statement ............................................................................................. 43

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Howard Coble, a Representative in 

Congress From the State of North Carolina, and Chairman, Subcommittee 

on Courts, the Internet, and Intellectual Property ........................................... 2

Prepared Statement of the Honorable Howard L. Berman, a Representative 

in Congress From the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property ......................... 3

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter and Attachments from Lawrence A. Salibra, II, Senior Counsel and 

Elisa P. Pizzino, Counsel, Alcan Aluminum Corporation ................................. 67

Attachments from Alex Kozinski and Stephen Reinhardt ................................... 91

Article from David Greenwald and Frederick A. O. Schwarz, Jr. ....................... 237

Article from Stephen R. Barnett ............................................................................ 279

Letter from Jonathan Lewin ................................................................................... 305

(1)

UNPUBLISHED JUDICIAL OPINIONS 

THURSDAY, JUNE 27, 2002

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COURTS, THE INTERNET,

AND INTELLECTUAL PROPERTY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:20 p.m., in Room 

2141, Rayburn House Office Building, Hon. Howard Coble [Chairman of the Subcommittee] presiding. 

Mr. COBLE. The Subcommittee will come to order. 

Ladies and gentlemen, pardon my immodesty, but this Subcommittee has an enviable record for punctuality, today notwithstanding. We had votes on the floor. In fact, one vote is just now 

being finalized, and that is why we are belated. My good friend, the 

Ranking Member, Mr. Berman, just joined us, so we will get underway. I thank you all for your patience in waiting for us to return. 

Today we will examine an issue which has long been the subject 

of debate; that is, unpublished judicial opinions. Permit me, if you 

will, to begin by echoing my sentiments from a previous hearing on 

the operations of the Federal judicial misconduct statutes. 

Overall, I believe that the Federal judiciary functions very well. 

At the same time, however, no branch of the government, including 

the third branch, is immune from evaluation. So that is one reason 

why we are assembled here today, to determine if there is in fact 

a problem with regard to the administration of justice in our country and, if so, to explore how we should fix or repair the problem. 

More specifically, we are trying to determine if the administrative practices of limited publication and noncitation of opinions 

among the circuits are fair, both to litigants who want to know 

what a court was thinking when it rendered a decision, as well as 

to attorneys attempting to scour the law for precedential authority 

when advising their clients. 

In conclusion, I want to extend my gratitude to everyone on the 

panel for your patience in working around the evolving Subcommittee schedule in preparation for this hearing. You will recall 

it was previously scheduled, and we had to reschedule for today. 

I hope that did not unduly inconvenience you. You have been very 

tolerant in this regard, and I appreciate your flexibility. 

I am now pleased to recognize my good friend, the distinguished 

gentleman from California and Ranking Member of this Subcommittee, Mr. Berman, for his opening statement. 

[The prepared statement of Mr. Coble follows:]

2

PREPARED STATEMENT OF THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA

Good morning. The Subcommittee will come to order. 

Today we will examine an issue which has long been the subject of debate: unpublished judicial opinions. Allow me to begin by echoing my sentiments from a previous hearing on the operations of the federal judicial misconduct statutes: Overall, 

I believe that the federal judiciary functions very well. At the same time, however, 

no branch of the government (including the Third Branch) is immune from evaluation. So that is why we are assembled today—to determine if there is a problem 

with regard to the administration of justice in our country; and if so, to explore how 

we should fix the problem. 

More specifically, we are trying to determine if the administrative practices of 

limited publication and non-citation of opinions among the circuits are fair, both to 

litigants who want to know what a court was thinking when it rendered a decision, 

as well as to attorneys attempting to scour the law for precedential authority when 

advising their clients. 

In conclusion, I want to extend my gratitude to everyone on the panel for his patience in working around the evolving Subcommittee schedule in preparation for 

this hearing. You have all been very tolerant in this regard, and I very much appreciate your flexibility. 

I now recognize my good friend, the Ranking Member from California, Mr. Berman, for an opening statement.

Mr. BERMAN. Thank you very much, Mr. Chairman. Thank you 

for calling the hearing. This is obviously an issue, the issue of unpublished judicial decisions, which has many in the judicial-legal 

communities quite exercised, and I think you are to be commended 

for your diligent efforts throughout this Congress to conduct oversight of those matters that fall into this Committee’s jurisdiction. 

I couldn’t help but notice your comment about it is appropriate 

to evaluate the role of the third branch. I think probably as we 

talk, the House of Representatives, on the floor, is evaluating the 

role of the third branch, or at least a decision of the third branch; 

but then the third branch constantly evaluates our work as well, 

and they actually might be able to do it with more effectiveness 

than we can evaluate theirs. 

But the issue before us today, that is, unpublished judicial decisions, poses important questions relating to the U.S. Constitution, 

the framers’ intent, judicial efficiency, and the fairness of our judicial system. While we certainly will not resolve these questions 

here now, I expect 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. 

I am interested in the ancillary issue that is raised by Judge 

Kozinski in his testimony. Specifically, without regard to what we 

might think about the pros and cons of unpublished judicial decisions, what is there that we can really do beyond being providing 

a forum for discussion? 

The independence of the judiciary is an integral aspect of our 

form of Government. Having sat on the Subcommittee for nearly 20 

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, and in the administrative as opposed to the 

court decision context, for instance, on the judicial privacy issue, I 

3

still try to 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, 

and I yield back the balance of my time. 

Mr. COBLE. I thank the gentleman from California. Thank you. 

[The prepared statement of Mr. Berman follows:]

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Chairman, 

I am pleased to join you today for this oversight hearing on ‘‘Unpublished 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. 

I yield back the balance of my time.

Mr. COBLE. Again I say to the panelists, good to have you all 

with us. Not necessarily in order of appearance, but I will introduce our first witness, an old friend and frequent visitor, whom I 

have not seen in a good while. Professor Arthur Hellman is Professor of Law at the University of Pittsburgh, where he teaches 

courses in Federal court, civil procedure and constitutional law. 

Earlier this year, Professor Hellman received the Chancellor’s Distinguished Research Award as a faculty member who has an outstanding and continuing record of research and scholarly activity. 

Professor Hellman received his B.A. Magna cum laude from Harvard University and his J.D. From the Yale Law School, and has 

4

been a member of the faculty at the Pittsburgh School of Law since 

1975. 

Our next witness is Judge Alex Kozinski, who was appointed 

United States Circuit Judge for the Ninth Circuit about 15, 16, 17 

years ago, I guess, Your Honor; 1985, I think. Prior to his appointment to the appellate bench, Judge Kozinski served as the Chief 

Judge of the United States Claims Court, worked in the Reagan 

administration, practiced law, and was a clerk to former Chief Justice Warren Burger. The judge received his B.A. And his J.D. Degree from UCLA. 

Our next witness is Mr. Kenneth Schmier. Although she is not 

a Member of our Committee, Congresswoman Lee, the gentlewoman from California, has requested permission to introduce Mr. 

Schmier. 

Ms. LEE. Thank you very much, Mr. Chairman. Let me just 

thank you for this privilege to be able to be with you today to make 

this introduction of my constituent, Mr. Kenneth Schmier. Let me 

just mention a couple of things about his background so you really 

can get a sense, the body, of who he is. 

He is Chairman of the Board and Founder of NextBus Information Systems, Inc. This information system actually operates in 

over 20 cities nationwide, including here in Washington, D.C., back 

in Oakland, California, San Francisco, and many other parts of the 

Bay area. 

Mr. Schmier is here today to testify on an issue to which he has 

really devoted considerable time and energy: the publication of appellate court decisions. He is chairman of the Committee of the 

Rule of Law, an ad hoc group which includes on its advisory board 

the district attorney of the City and County of San Francisco, the 

Dean of the Golden Gate School of Law, and the former D.A. Of 

San Francisco, and many other distinguished attorneys and Government leaders. 

So it is my pleasure to welcome Mr. Schmier to Washington, 

D.C., to introduce him to the distinguished Members of this Subcommittee. I would like to say in closing that Mr. Schmier has a 

J.D. Degree from Hastings Law School. 

Thank you, Mr. Chairman. 

Mr. COBLE. Thank you. Mr. Schmier, my able counsel advises me 

that I badly butchered the pronunciation of your name, so I will 

correct it now. Mr. Schmier. 

Our final witness is the Honorable Samuel Alito, who is a judge 

for the U.S. Court of Appeals for the Third Circuit. Judge Alito was 

nominated by President Bush and confirmed by the Senate on June 

15, 1990. He was awarded his B.A. From Princeton and his J.D. 

From Yale. Judge Alito was admitted to the New Jersey Bar and 

the U.S. District Court of New Jersey. 

Good to have all of you with us. We have written statements 

from each of you. I ask unanimous consent that these statements 

be submitted into the record in their entirety. 

Gentleman, as you will recall, we have previously requested that 

you limit your oral testimony to 5 minutes. I don’t like to muzzle 

witnesses, but in the interest of time, we have votes that are ongoing on the floor, your statements have been read and will be 

reread, so don’t think that we are hustling you in and hustling you 

5

out. But when you see the red light appear in your face at the 

panel on the desk, that will be your signal that you have exhausted 

your time limit. You won’t be keelhauled if you take another second 

or two, but try to wrap up at that point. 

Mr. COBLE. Judge Alito, why don’t we start off with you, Sir? 

STATEMENT OF HONONORABLE 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 

Judge ALITO. Thank you very much, Mr. Chairman. It is a pleasure for me to be here this afternoon to try to explain the ways in 

which——

Mr. COBLE. I am not sure you have that mike activated. 

Judge ALITO. There it is. I apologize. It is a pleasure for me to 

be here this afternoon to explain the ways in which the Federal judiciary is attempting to address this important subject through the 

rules process. 

The term that is used customarily in this area—unpublished 

opinions—is, of course, familiar to all of us, and I think the people 

who are familiar with the area know what it means. But I believe 

it is worth a minute at the outset to make sure that nobody is misled, because as a result of some recent developments and, in particular, technological changes, the term can be very misleading. 

The fact of the matter is that today the vast majority of opinions, 

even if they are not printed in the traditional source, the Federal 

Reporter, are published in any sense of the word. They are available to subscribers to services such as LEXIS and WESLAW. They 

are now printed in a separate series of case reports called the Federal Appendix, which is available in most law libraries. All of the 

courts of appeals now have web sites, and most of them now post 

all of their opinions on those web sites so that anybody with access 

to the Internet can have easy and cheap access to all of those opinions. 

So the term ‘‘unpublished opinion’’ has really become somewhat 

misleading. But whatever we call these opinions, they are vitally 

important to the work of the courts of appeals. The courts of appeals issue thousands of them each year, and I don’t think it is an 

exaggeration to say that if the courts of appeals were required tomorrow to decide every case with the kind of opinion that is published in the Federal Reporter, either the courts would shut down 

or their work would be radically transformed in undesirable ways. 

The issue of these unpublished or ‘‘non-precedential’’ opinions, as 

some of us now call them, seems to raise three major questions. 

They are related, but I think it is worth trying to keep them separate. 

The first is the question of public access. Are these opinions readily available to members of the public and to the bar? 

The second is the question of citation. Should lawyers be restricted in their ability to cite those opinions in their briefs? 

The third is the question of precedential value. Should these 

opinions, should the decisions that are memorialized in these opinions, be binding in future cases? 

6

The first issue, the issue of public access, has, I believe, been 

solved to a large degree by the advances that I mentioned first. As 

I said, I think these opinions are now, in the main, very broadly 

available to the public at little cost. 

The third issue, the question of precedential value, of course, implicates the doctrine of stare decisis, which has traditionally been 

developed by the courts in the course of deciding cases. This is an 

area in which there have been some very interesting developments 

in recent years. There has been a renewal of academic interest in 

the area, there have been some very interesting and provocative judicial decisions in the area, and I think it is the overwhelming sentiment of the judiciary that this development should continue in 

this manner in the common law tradition and should not be regulated by the national rules process. 

That leaves the second question, the question of citation, and 

that is the one with which I am most directly concerned. At this 

time, the issue is left to each court of appeals and the courts of appeals have different approaches. Some allow free citation of all 

opinions. The rest restrict citation to various degrees. 

The Justice Department has recommended that the Federal 

Rules of Appellate Procedure be amended so that there would be 

a national uniform rule on this question that would allow the citation of all opinions for certain purposes, including, most importantly in this connection, in an instance in which an opinion that 

is not printed in the Federal Reporter has persuasive value that is 

greater than any other opinion that is available in a traditional 

printed form. 

This proposal has been debated and discussed by the committee 

that I chair, the Advisory Committee on Appellate Rules, at several 

meetings. We surveyed the chief judges of the circuits on the proposal and, not surprisingly, they were sharply divided. Some were 

in favor, others were opposed. Others had mixed views on the question. 

We are scheduled to take this question up again at our next 

meeting in November, and I expect that at that time we will vote 

either in favor of recommending the adoption of the Department of 

Justice proposal or some alternative, or perhaps the vote will be 

against any change in the current practice. 

But the point I want to make is that we are very actively engaged in the process of considering and debating this issue, and we 

welcome your oversight on the question and the new information 

that this will bring to light. 

Thank you. 

Mr. COBLE. Thank you, Your Honor. 

[The prepared statement of Judge Alito follows:]

PREPARED STATEMENT OF SAMUEL A. ALITO, JR. 

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 subVerDate Jan 17 2002 11:33 Aug 08, 2002 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\062702\80454.000 HJUD1 PsN: 80454
7

mitted 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 opinionwriting 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’’—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. 

8

1Federal Courts Study Committee, Working Papers and Subcommittee Reports, Volume 1, p. 

82 (July 1, 1990). 2See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) (holding local rule unconstitutional), vacated en banc, 235 F.3d 1054 (8th Cir. 2000). A subsequent Ninth Circuit opinion 

found that a local rule prohibiting citation of an unpublished opinion was not unconstitutional. 

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 ‘‘Unpublish’’ Opinions, 77 Notre Dame 

L. Rev. 135 (2001); John Harrison, The Power of Congress over the Rules of Precedent, 50 Duke 

L. J. 503 (2000). 

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.’’ 1 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’’—that is, the public dissemination—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.2 The judiciary is also acutely aware that past practices 

regarding non-precedential opinions have led to misperceptions and that some scholVerDate Jan 17 2002 11:33 Aug 08, 2002 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\062702\80454.000 HJUD1 PsN: 80454
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ars, 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.

Mr. COBLE. Judge Kozinski. 

STATEMENT OF HONORABLE ALEX KOZINSKI, JUDGE, UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

Judge KOZINSKI. Good afternoon, Mr. Chairman. Thank you so 

much for inviting me. I feel privileged to be able to speak on the 

topic. 

10

I do want to say a word on behalf of the Committee staff that 

was so helpful to me: Melissa McDonald, Eunice Goldring, Alec 

French. I came all the way from California and had logistical problems. They couldn’t have been more helpful or courteous. I really 

appreciate it. 

Mr. COBLE. Is that the way they told you to tell us that, Judge? 

Judge KOZINSKI. Their mother called me. 

Mr. COBLE. Judge, we are very high on the staff on both sides. 

Thank you for mentioning that. 

Judge KOZINSKI. We deal with the public as well, of course, and 

we believe that how staff deals with members of the public reflects 

on us, and I think it really reflects well with the Committee how 

well your staff did. I don’t want to belabor the point. 

May I also introduce two gentlemen in the audience, Judge William Bryson from the Court of Appeals of the Federal Circuit, who 

spent many years in the Justice Department, including 8 years in 

the Solicitor General’s Office. The Federal Circuit is another large 

circuit and has problems maybe somewhat different from ours. I 

asked Judge Bryson to be here, and conceivably with the permission of the Committee, if I get a question that bears on something, 

I may consult with him. 

I also want to acknowledge Thomas Healy, a lawyer in town, a 

former law clerk of the Ninth Circuit, who wrote I think—and I 

have made copies of this as an exhibit—a Law Review article that 

goes into the very question of precedent, which is at the very heart 

of what these hearings are about. And it is such a scholarly piece 

that I believe the subject should be started by reading and understanding what Mr. Healy has said. Again, I may call on him if I 

get in too deeply. 

I want to echo what Judge Alito said. Unpublished dispositions 

don’t mean secret law. They never have meant secret law. Published has a specific meaning in the Federal courts, and what it 

means is it is those opinions through which the courts of appeals 

speak to the other judges of our circuit—of the circuit, by which we 

give guidance as to what the law is. 

We decide many cases. In our circuit, we decide 4,500 cases or 

more a year, and we have a complement of about two dozen judges, 

with some help from senior judges, and we have to decide those 

cases, and we look at all of them very closely in deciding them. But 

some cases are such that they require an elucidation of the law and 

require guidance to other judges, to the judges of the district 

courts, the judges of bankruptcy courts, magistrate judges, and also 

notice to the public of how the law is developed. Those are the published opinions. 

Quite simply, deciding some cases by unpublished disposition, 

which is simply a letter to the parties telling them who won and 

who lost, and why, frees us up to spend the time that needs to be 

spent on published opinions, the ones that actually shape the law. 

Those are very difficult indeed. If one has not worked on a judicial opinion, one might think you write it down and it all comes out 

of the pen, but in fact it is a very time-consuming process, because 

you are thinking not only about the case before you, but you are 

thinking of all the cases in the future that will be governed by this 

principle. You have to put in not too much, not too little. You have 

11

to put in a principle that will apply to this case, but also correctly 

predict the result in other cases. 

I have been doing it for 20 years. I clerked on the Ninth Circuit, 

as the Chairman pointed out. I have been 17 years on the Ninth 

Circuit. I was a judge before that on the Court of Federal Claims. 

And there is an incredibly difficult and time-consuming task involved in writing opinions. We all do these things. We write in our 

chambers; 30, 40, 50, 60, 80 drafts of an opinion are not at all unusual. 

Now, that kind of effort simply cannot be spent on 150 cases that 

each judge has to dispose of a year, and an additional 300 cases 

that each judge has to—is on a panel with two other judges and 

has to review and approve. 

In my view, requiring that all of those dispositions be published 

would result in simply chaos in the law. It would not allow us to 

spend the time needed to write opinions of that matter whereby we 

speak to our lower court judges and explain what the law is, and 

it would become a hunting ground for lawyers to find spurious distinctions, small changes in wording, that make no difference at all 

to the outcome, but give them a chance to try to say a case that 

otherwise is clear winds up being unclear, leading to more litigation, more expense, more delay for the litigants. 

This is not a new process. As Mr. Healy points out in his article, 

this has been going on since the early days of the common law. 

Lord Coke complained there were too many cases cluttering up the 

law, making it difficult to figure out what the law is, not easier. 

In fact, appended to my statement are the practices in the State 

courts. As you will see, 38 States have some form of strict noncitation, nonpublication rule. There is much wisdom in the States. 

They decide far more cases than the Federal courts. They believe 

this is a tool that is necessary for the management of the case law. 

I believe this is something that speaks to the legitimacy of the 

practice. 

Thank you very much. 

Mr. COBLE. Thank you, Your Honor. The Subcommittee will welcome your companions as well, and your former law clerk. Good to 

have you all with us as well. 

[The prepared statement of Judge Kozinski follows:]

PREPARED STATEMENT OF ALEX KOZINSKI

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 ‘‘unpublished’’ is an anachronism, dating back to the days when failing to designate a disposition for inclusion 

12

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—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—district judges, magistrate judges, 

bankruptcy judges, even circuit judges—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—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—if they leave the law uncertain or in 

disarray—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—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 disVerDate Jan 17 2002 11:33 Aug 08, 2002 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\062702\80454.000 HJUD1 PsN: 80454
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position 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—20 opinions and 130 unpublished dispositions—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—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—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—such 

14

as a jurisdictional defect—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—the only ones for whom the disposition is intended—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—often a huge amount of time—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—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—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—an obligation to follow earlier opinions of the court, published or not—

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 

15

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 ‘‘nos’’ and ‘‘nots’’ 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—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: ‘‘[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: ‘‘Summary 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 ‘‘de-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, overVerDate Jan 17 2002 11:33 Aug 08, 2002 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\062702\80454.000 HJUD1 PsN: 80454
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seeing 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 ‘‘all 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—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)—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, ‘‘the reasons or causes of the judgment,’’ says Lord Coke, ‘‘are 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 rightminded Judges, in important cases—when the pressure of other business will 

permit—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. 

17

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 ‘‘published’’ opinions 

that have very little useful content—akin to very abbreviated dispositions or judgment orders—that contain little more than the word ‘‘Affirmed.’’

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—whether to stay with the current local option or to adopt a national rule—the political branches of government will accept 

and respect it.Citation Rules in State Courts

18


KozA.eps
19

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: 

‘‘Summary 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).


KozB.eps
20

Should Not Be Cited: ‘‘Cases affirmed without opinion by the Court of Appeals should not be cited as 

authority.’’ Or. R. App. P. 5.20(5).

May Be Cited: 

‘‘Unreported opinions or orders may be cited, but a copy must be provided.’’ Del. Sup. Ct. R. 14(b)(vi)(4).

Mr. COBLE. Mr. Schmier. 

STATEMENT OF KENNETH SCHMIER, CHAIRMAN,

COMMITTEE FOR THE RULE OF LAW 

Mr. SCHMIER. Thank you, Mr. Chairman. Approximately 4 

months ago we received a decision in Schmier versus the United 

States Court of Appeals for the Ninth District that found us without standing to ask constitutional questions of the Ninth Circuit in 

the district courts of that district. We thought that surprising, because it seemed that a lawyer should be able to inquire of the 

courts their rationale for rules that make it impossible for lawyers 

to know the law. 

The appellate court told us we would have to press our matter 

before Congress, and we are here. I suppose that shows that disgruntled litigants can get here. 

I think I can be most useful in pointing out to the courts what 

it feels like to be a litigant who receives one of these unpublished 

appellate opinions. As Judge Kozinski points out, there is much 

wisdom in looking to the States, and my experience has been primarily in California, but there are witnesses here in the room who 

would be happy to share experiences with the Federal courts. 

Our family appealed a contractual dispute where the trial court 

had determined the matter by a rule of law clearly contrary to that 

of the civil code. There were a lot of shenanigans during the process of the appeal, like the appellate record was missing for a long 

time. But 2 days before the oral argument, the presiding judge took 

the case off calendar and the case disappeared for 5 months. 

One month later when the opinion was issued, its result was 

based upon 10 principles of law that were unrecognizable and they 

were unsupported by sites of authority. So we petitioned the court 

for rehearing, asking the court to correct those errors of law, any 

one of which would require a different result. 

At the same time, we petitioned the court to publish the opinion 

and make it the law for everyone, feeling that the court would have 

to choose between correcting its errors or publishing the case, making it the law for everyone, and turning the contract law of California absolutely upside down. 

The court refused to do either. So the question we raise to you 

is, are we simply disgruntled litigants, or do we have a legitimate 

beef? If the court is unwilling to make its rules of novel statements 

of law, law for everyone, why should we be subject to it? It seems 

to us that the failure to make law the law for everyone denies us 

the basic warranty of justice; that is, that every case is decided according to principles of law that are applicable to everyone. 

I can tell you that my experience in traveling around the State 

of California, speaking to community groups, is that the public is 

uniformly unaware that there is such a thing as a ‘‘no citation’’ rule 

operating in our courts. I can also tell you that they are horrified 

21

to hear that such a thing could exist. After all, how is it possible 

that a criminal defendant in America can be deprived of the right 

to tell a trial court that there exists an appellate court decision 

that would exonerate? 

And we asked other questions. We want to know how it is possible to carry out the promise of equal protection of the law. ‘‘equal 

justice under the law’’ is carved over our Supreme Court. How can 

we carry that out, even in theory, if we don’t maintain a citable 

body of knowledge of what has been decided in other cases? How 

can anybody insist on equal protection of the law if they can’t bring 

to a court’s attention that which the courts have already decided? 

Finally, we ask this question: How is it possible, in a country 

that values free speech and where content restrictions on free 

speech are presumptively invalid, that a court can prohibit the discussion of what is our law in our courts of law? 

We think that all of these things create a prima facia case that 

these rules are unconstitutional. The courts have been unwilling to 

act, and we ask now for checks and balances. 

Mr. COBLE. Thank you, Mr. Schmier. 

[The prepared statement of Mr. Schmier follows:]

PREPARED STATEMENT OF KENNETH J. SCHMIER

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 ‘‘System,’’ 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 ‘‘no 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. 

22

Due Process and Freedom of Speech allow us to insist upon equal treatment. Nocitation 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 nonpublication rules exactly analogous to that of the 9th 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 ‘‘Not 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 de- cision 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 

‘‘look 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, ‘‘look 

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 

23

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 9th, Judge Kozinski established the law of 

the 9th Circuit as ‘‘binding precedent’’ finding a violation of court rules by counsel’s cite of an unpublished opinion directly relieving her client of liability: ‘‘The only way Kish could help counsel’s argument is prohibited by Ninth Circuit 

Rule 36–3—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 9th 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 9th 

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 9th 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 ‘‘decline(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.4th, 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 

24

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—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 9th Circuit, and Schmier v. United State 

Court of Appeals for the 11th 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 9th and Schmier v. USCA 

11th refused to do so. The USCA 11th 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 ‘‘Each court should be allowed to decide for itself the 

circumstances under which nonprecedential opinions may be cited.’’ Similarly, 3rd 

Circuit Chief Judge Edward R. Becker wrote ‘‘the 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 ‘‘should be a matter 

for the Courts of Appeals IOP’s, if at all.’’ Circuit Judge Wilfred Feinberg of the 2nd 

Circuit wrote ‘‘I also feel that any attempt to specify uniform, national criteria for 

‘unpublished’ opinions—would be unwise.’’ 2nd Circuit Chief Judge Ralph K. Winter 

wrote ‘‘the 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.’’ 7th Circuit Chief Judge Richard A. Posner wrote—I do think it is useful 

‘‘very useful—to have a category of unpublished opinions, provided it is understood 

that such opinions cannot be cited. . . . 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 4th Circuit Chief Judge J. Harvie Wilkinson III summed up the judges 

position best, ‘‘there 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 9th, the USCA 9th stated that ‘‘Schmier will have to press 

his concerns about unpublished opinions—to the Congress,’’ perhaps anticipating 

that the difficulty of doing so would daunt us. We are here to do just that. 

25

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, ‘‘that 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 welltrained 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, 

‘‘Because 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 ‘‘binding 

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. 

26

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—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.

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Mr. COBLE. Professor Hellman. 


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STATEMENT OF ARTHUR HELLMAN, PROFESSOR OF LAW, 

UNIVERSITY OF PITTSBURGH SCHOOL OF LAW 

Mr. HELLMAN. Thank you, Mr. Chairman, and thank you for the 

opportunity to express my views today. 

The problem of unpublished opinions actually encompasses three 

related but distinct issues. The first question is whether a court of 

appeals should provide some kind of explanation in every case that 

it decides on the merits. My answer is that it should, and the reason goes back to something basic that in fact is cited, I think, in 

the Massachusetts Constitution of 1780: We have a Government of 

laws and not of men. 

When an appellate court decides a case, the court’s explanation 

provides the tangible evidence that the decision is the product of 

the law and not simply the personal preferences of the judges who 

happen to sit on that panel. Deciding cases by judgment orders or 

their equivalent is an unacceptable practice that should not be considered among the options available to the courts of appeals as 

they consider the other issues. 

Now, a related point involves the dissemination of opinions that 

Judge Alito has alluded to. Today, 11 of the 13 circuits make their 

unpublished decisions available to WESTLAW and LEXIS and 

other electronic publishers, and that includes the circuits that prohibit the citation of opinions as precedent. The courts do this, I 

think, at least in part, because they recognize that ready access to 

unpublished opinions is an important mechanism for accountability, whether or not those decisions are binding or even citable. 

My own view is that the courts should make all of their unpublished opinions available to the electronic publishers, and if they 

are not willing to do it on their own, I would like to see the judicial 

conference take some steps. 

That brings me to the second step of the major issues, the precedential status of unpublished opinions. I think this is a very difficult question. I had hoped to find some middle ground, but I have 

concluded that given the realities of the process by which cases 

with unpublished opinions are decided, there really is not a middle 

ground and the courts should not feel bound by any of those decisions. 

Now, that does mean we are going to be compromising with the 

principle of treating like cases alike, and we should not do that easily or lightly. But I think it is going to happen here. 

Fortunately, as a practical matter, not many cases will be affected. In any event, what is important is not the formal legal status of unpublished opinions, but their role in the adjudicative process. 

That brings me to the issue that Judge Alito’s committee is addressing: whether litigants should be permitted to cite unpublished 

opinions for their persuasive value when arguing later cases in the 

court of appeals. 

Now, I think that the permissive citation rule that was endorsed 

provisionally by Judge Alito’s committee just a few months ago, I 

think that is a good rule and I hope it will survive the long and 

arduous process of rulemaking under the enabling act. 

I say that for a couple of reasons. Several of the circuits have 

been operating under variations of that rule for several years now, 

43

and the problems that Judge Kozinski fears do not seem to have 

materialized. But it is not just the absence of negative effects that 

lead me to endorse the rule. There are positive reasons, and one 

is suggested in Judge Boudin’s letter to Judge Alito. Litigants can 

provide information to the court that the court should have, but is 

not likely to get through other means. 

More broadly, I believe 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 

welcome that information and either assimilate the holding into 

the body of law, or forthrightly repudiate it. 

Having said all that, I recognize the legitimacy of the concerns 

that have been articulated by Judge Kozinski and Judge Boudin, 

concerns that involve the effect of a permissive citation rule on the 

internal practices of the courts. 

Now, I am not fully convinced by those arguments, but I do appreciate the value of the system of regional decentralization that 

our court of appeals system represents. So if the judges of a court 

of appeals, after formally and publicly consulting the bar of the circuit and other interested citizens, if they adhere to their view that 

a permissive citation rule would undermine circuit operations, the 

court should be allowed to opt out. I suggest that opt-out proviso. 

My hope, though, is that the circuits that opt out will ultimately 

come around, and I think they will, because I think they will ultimately recognize that judges and lawyers together can do a better 

job than judges alone in realizing the ideals that underlie our system of precedent. 

Thank you. And thank you again for holding the hearing on this 

important subject. 

Mr. COBLE. Thank you, Professor. 

[The prepared statement of Mr. Hellman follows:]

PREPARED STATEMENT OF ARTHUR D. HELLMAN

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. 

44

1 Anastastoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot, 235 F.3d 1054 (8th 

Cir. 2000) (en banc). 

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 to 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,1 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 constituVerDate Jan 17 2002 11:33 Aug 08, 2002 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\062702\80454.000 HJUD1 PsN: 80454
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2See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) (Kozinski, J.). 3 Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change, 67 F.R.D. 195, 258 (1975) 4 According to Administrative Office data, only two circuits—the Eighth and the Eleventh—

dispose of a substantial number of appeals ‘‘without comment.’’ In the other circuits, all but a 

handful of cases receive ‘‘opinions or orders that expound on the law as applied to the facts of 

each case and that detail the judicial reasons upon which the judgment is based.’’ See Table 

S–3 in the Annual Reports of the Director of the Administrative Office. Perusal of the Federal 

Appendix does not suggest a different conclusion; however, I do not know if the Federal Appendix includes all unpublished decisions. 

tional 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.2 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.’’ 3

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.4 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 

46

5The Third Circuit joined this group only recently. The court announced that ‘‘beginning January 2, 2002, all opinions of the Court in counseled cases will be posted on the court’s web site— and will be available for dissemination by legal publishers.’’ From my own research, it appears 

that five other circuits—the First, Second, Fourth, Eighth, and Tenth—also post unpublished 

opinions on the courts’ web sites. 6 Not surprisingly, judges sometimes disagree over the effect of Supreme Court decisions on 

circuit precedent. See, e.g., South Camden Citizens in Action v. New Jersey Dep’t of Envt’l Protection, 274 F.3d 771 (3d Cir. 2001); Johnson v. K Mart Corp., 273 F.3d 1035 (11th Cir. 2001); 

Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001). 7 Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 222 

(2000). 8 Hart v. Massanari, 266 F.3d 1155, 1159 (9th Cir. 2001) (quoting 9th Cir. R. 36–3). 

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.5 This 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.6 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.7 Judge Alex Kozinski, 

writing in response, defended his circuit’s rule that unpublished dispositions ‘‘are not binding precedent.’’ 8

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 

47

9 Hart, 266 F.3d at 1176–77. 10 Id. at 1176. 11 Christie v. United States, 1992 U.S.App. LEXIS 38446 (8th Cir. 1992). I believe that at the 

time of the Anastastoff decision, Christie was not available on line on either Westlaw or Lexis. 

It is now available on Lexis. 12The Christie disposition, in rejecting the taxpayers’ statutory arguments, cited no precedents at all. Judge Jerry E. Smith has described Christie as ‘‘a textbook example of an unpublished opinion that in fact does announce a new rule of law.’’ Williams v. Dallas Area Rapid 

Transit, 256 F.3d 260, 262 (5th Cir 2001) (dissent from denial of rehearing en banc). 

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 timeconsuming 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.’’ 9

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 wil 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.10

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,11 the unpublished Eighth Circuit decision 

that the Ananastoff panel relied on.12 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 

48

13See, e.g., Jarrow Formulas, Inc. v. Nutrition Now, Inc.,—F.3d—(9th Cir. 2002) (citing 

Tagaropulos, S.A. v. S.S. Santa Paula, 502 F.2d 1171, 1171 (9th Cir. 1974)). 14 814 F.2d 1304 (9th Cir. 1987) (en banc). 15 590 F.2d 321 (9th Cir. 1979). 16 Beisler, 814 F.2d at 1308 (emphasis added; internal quotation marks deleted). 17 Hart, 266 F.3d at 1179. 18 Arnold, supra note 7, at 222–23.

that kind have been treated as holdings.13 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,14 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,15 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 banc opinion 

continued: ‘‘Such unstated assumptions on non-litigated issues are not precedential 

holdings binding future decisions.’’ 16

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. 

2. Unpublished opinions and ‘‘case-matching’’

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.17 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.18

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19See Arthur D. Hellman, Breaking the Banc: The Common-Law Process in the Large Appellate Court, 23 Ariz. St. L.J. 915, 917 & n.13 (1991) (quoting Lord Mansfield). 20 122 S. Ct. 744 (2002). 

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.’’ 19 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,20 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 

50

21Dunbar v. Henry du Bois’ Sons Co., 275 F.2d 304, 306 (2d Cir. 1960). The judge was Judge 

Charles E. Clark, the principal drafter of the original Federal Rules of Civil Procedure. 22See Hellman, supra note 19, at 922–23. 23There is a parallel in the Supreme Court’s treatment of its summary affirmances. The Court 

has said that summary affirmances ‘‘are of precedential value,’’ but ‘‘not of the same precedential value as would be an opinion of this Court treating the question on the merits.’’ Edelman

v. Jordan, 415 U.S. 651, 671 (1974). 24 398 U.S. 375 (1969). 25 Id. at 403. 26 10th Cir. R 36.1. 27 4th Cir. R. 36(a) (tenses altered) 28 Benjamin N. Cardozo, The Nature of the Judicial Process 149 (1921). 

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.’’ 21 No one takes that position today, for good reason.22 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.23

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,24 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.’’ 25 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;’’ 26 in the Fourth Circuit’s language, the decision does not 

‘‘establish, alter, modify, clarify or explain a rule of law within [the] Circuit.’’ 27

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.’’ 28 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. 

51

29 7th Cir. R. 40(e). 30See, e.g., Edward R. Becker, Contemplating the Future of the Federal Courts of Appeals, 

34 U.C. Davis L. Rev. 343, 344 (2000) (Third Circuit). 

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.’’ 29 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.30 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 outVerDate Jan 17 2002 11:33 Aug 08, 2002 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 G:\WORK\COURTS\062702\80454.000 HJUD1 PsN: 80454
52

31The problem, of course, stems from the fact that the lower court would have no authority 

to overrule the unpublished decision. 32 Anastastoff, supra note 1, 223 F.3d at 904. 33The discussion here is limited to citation rules in the courts of appeals. Different considerations come into play at the trial-court level. 34 As Chief Judge Boudin of the First Circuit said in his letter to Judge Alito, ‘‘it is quite convenient for us to know that the court has said one thing in an unpublished opinion and is proposing to say something else in a published one; we may well find this out ourselves but [a rule 

allowing citation] would make counsel help.’’ 35See, e.g., United States v. Rivera-Sanchez, 222 F.3d 1057, 1062–63 (9th Cir. 2000). In that 

case, at the request of the court, counsel ‘‘produced a list of twenty separate unpublished dispositions instructing district courts to take a total of three different approaches to correct [a recurring] problem [involving resentencing].’’ 36 Boyce Martin, In Defense of Unpublished Opinions, 60 Ohio St. L. J. 177, 192 (1999). 37Lauren Robel, The Practice of Precedent: Anastasoff, Noncitation rules, and the Meaning 

of Precedent in an Interpretive Community, 35 Ind. L. Rev. 399, 416 (2002). 

come, 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.31 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.’’ 32 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.33 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? 34 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? 35 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.’’ 36 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.’’ 37 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 

53

38 531 U.S. 533 (2001). 39 Id. at 545. 40 Id. 41See Michael Hannon, A Closer Look at Unpublished Opinions in the United States Courts 

of Appeals, 3 J. App. Prac. & Process 199, 218–19 (2001); Ruth Colker, Winning and Losing 

under the Americans with Disabilities Act, 62 Ohio St. L. J. 239, 254 (2001). 42See Hannon, supra note 41, at 220–21; Ruth Colker, The Americans with Disabilities Act: 

A Windfall for Defendants, 34 Harv. C.R-C.L. L. Rev. 99, 104–05 (1999). 

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,38 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.’’ 39 The Court struck down a law that sought ‘‘to prohibit the 

analysis of certain legal issues and to truncate presentation to the courts.’’ 40 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.41 Unpublished dispositions are skewed even more 

strongly in the same direction.42 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, 

54

43This approach can be seen as a particularized application of the insights associated with 

the economist F.A. Hayek. Hayek’s theories would suggest that the collective perceptions of lawyers acting on behalf of clients with diverse interests will provide better information about the 

precedential value of opinions than the small groups of judges who decide the cases. 44Letter of Chief Judge Boudin to Judge Alito, Feb. 26, 2002, at 2–3 (on file with author). 45When a duty of initial disclosure was first made part of the Federal Rules of Civil Procedure, individual judicial districts were permitted to opt out by local rule. Seven years later, the 

rules were amended to eliminate the opt-out provision. 

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.43

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 shortform dispositions.’’ 44

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 § 2071(b).45

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.’’

55

46 Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An 

Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1396 (1953). 47 It is instructive to browse through a volume of the Federal Appendix. The vast majority 

of the opinions have nothing in them that anyone would want to cite. 

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 noticeand-comment procedure specified in 28 USC § 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.’’ 46 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.47 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.

Mr. COBLE. Thanks to each of you. Mr. Berman and I imposed 

the 5-minute rule against us as well, so the red light will appear 

in our eyes as well. Let me get moving here. 

Judge Alito, in your written testimony you articulate a defense 

of unpublished cases that lack precedential value. You state that 

56

a brief written response is all that is necessary to inform the litigants of the outcome and the reasons for it. 

Is this in fact being done, A; and, in other words, do all litigants 

throughout the circuits receive some response, however brief, which 

explains the reasoning behind an opinion, even though it is unpublished? 

Judge ALITO. That is true in my court, and I am, of course, most 

familiar with the practices of my court. We now issue an explanation in every case. 

Whether it is true now in every circuit, I am afraid I can’t answer. I believe it is now the predominant practice nationwide. 

Mr. COBLE. Mr. Schmier, do you and Mr. Hellman want to weigh 

in on this? 

Mr. HELLMAN. It is the practice in most circuits. The best evidence we have is the annual report of the Administrative Office of 

U.S. courts. According to that, of the 28,000 decisions on the merits 

in the most recent fiscal year, there are only about 1,300 classified 

as without comment. That is about less than, I think, one half of 

1 percent; 647 of those are from the Eighth Circuit, and that does 

not accord with what I have seen of the Eighth Circuit practice. 

So it may be that there is some difficulty there in classifying 

cases in accordance with the AO’s labels for these things, but my 

strong sense is that what Judge Alito describes for the Third Circuit is the practice pretty much throughout the country. 

Mr. COBLE. Mr. Schmier? 

Mr. SCHMIER. The question is really whether or not the appellate 

decision is respectful of the humanity of the people who come before the court. If the appellate decision does not carefully address 

and explain the law used to resolve the issue, or does not address 

the arguments that have been posed by the losing party to explain 

why they are not relevant, then that decision leaves the parties 

unsatisfied that their arguments have been heard, and that is the 

constant practice in unpublished opinions. The real reason why we 

are here is the unpublished opinions are simply not made to a 

quality level that satisfies people. 

Mr. COBLE. Judge Kozinski, do you want to weigh in on this? 

Judge KOZINSKI. In our circuit, in our court of appeals, you always get an explanation in writing. One of the points I want to 

make is if you make all of those things citable, we are simply going 

to say less. We are simply going to say less, because everything 

that you say and you put in an opinion, anything that is precedential, lawyers will look at, lawyers will try to twist and find a way 

of using to their advantage, and we will simply say less. 

So I think in a way, acquiring the ability to cite and making 

them precedential would in fact go counter to what Mr. Schmier 

was worried about. 

Mr. COBLE. I think you touched on this, Judge Alito, but let me 

ask you, Professor Hellman, comment on the difference between 

unpublished and uncitable and why is the distinction significant? 

I am going to start with you, Professor Hellman. 

Mr. HELLMAN. Yes. 

Mr. COBLE. I think you touched on it, Judge Alito, in your statement. You go first, Mr. Hellman. I will then come to Judge Alito. 

57

Mr. HELLMAN. Judge Alito is absolutely right in saying the term 

‘‘unpublished opinion’’ is a misnomer, and maybe the time has 

come to get rid of it, because it is so misleading. 

It seems to me that we have two phenomena here, and it is so 

easy to get them confused or to assume that they are the same 

thing. Judge Alito’s committee, I think, in the rule it is considering 

refers to non-precedential opinions. That is, the court designates a 

certain class of opinions and says these opinions are nonbinding. 

That is the relevant, the first relevant classification; is or is not the 

opinion in a class that the court calls binding. 

The second question is are nonbinding opinions citable for their 

persuasive value, even though they are not binding? That it seems 

to me is the central issue and the one that is toughest and the one 

that I would like to see the most attention paid to. 

Mr. COBLE. Do you want to add anything to that, Judge Alito? 

Judge ALITO. No, I think that explains it. 

Mr. COBLE. The gentleman from California. 

Mr. BERMAN. Mr. Chairman, I sort of wish this hearing were an 

unpublished hearing, because I have not done all the background 

work I had hoped to do before it. 

My first question is really just out of curiosity, and perhaps silly, 

but in an uncitable opinion, an opinion that has been ruled to be 

uncitable, when one of the parties to that ruling wants to assert 

that the issue is res judicata, can he cite the earlier opinion? 

Judge KOZINSKI. That is a very good question. 

Mr. BERMAN. A good question. All right. 

Judge KOZINSKI. All of the noncitation rules that I am aware of, 

certainly ours does, have an exception for res judicata, collateral 

estoppel, and double jeopardy, all things that go not to the precedential effect of the opinion; and precedential effect means the effect of this ruling on other unrelated cases; but where the rule goes 

to the relationship of the parties to this case, there is always an 

exception for those. 

Mr. BERMAN. Why should—this may have been touched upon, 

but I missed it. Why not have a universal rule that binds all circuits, whatever that rule is, rather than having different rules for 

different circuits? Is there a case for the regionalization, the decentralization of practices in this area? 

Judge ALITO. Well, we are, of course, considering whether a national rule on citation should be adopted. There are certainly those 

on our committee and those people in the bar who argue very 

strongly in favor of a national rule. Some of them are institutional 

litigants who appear in many different circuits, and they find it difficult to operate under all of these conflicting regimes. 

Some argue that there simply is not any justification for regional 

differences. 

On the other side, there is the argument that the caseloads of 

the courts of appeals do differ quite significantly. The number of 

cases per judge in some of the courts of appeals—and Judge 

Kozinski’s court is one of them—the caseloads in some courts are 

considerably higher than in other courts. 

Courts have different internal practices about circulating opinions before publication and things of that nature. 

58

So to the extent there are differences in caseloads and internal 

operating procedures, the argument is made there is a justification 

for a different treatment on a circuit-by-circuit basis. 

Judge KOZINSKI. We believe—or I believe very strongly there is 

a justification for having different rules for different circuits. As I 

said, what opinions are are those communications that the court of 

appeals judges make to instruct those who apply the law, like district judges and magistrate judges, U.S. Attorneys and the like, as 

to how to apply the law. We don’t want a lot of clutter. We don’t 

want a lot of static. We want to speak clearly through those published opinions. And given that we have over two dozen judges 

doing the speaking, plus 10 senior judges, plus visiting judges, you 

can actually get quite a cacophony going; and then we speak to a 

very large group as well, more district judges than any other circuit. 

The Federal Circuit probably has an even more serious problem 

than we do, because as members may recall, they not only review 

the Court of International Trade, but every single district in the 

country in patent cases. Every single district court in the country. 

So when they speak, they speak to the 800 district judges in the 

country, some of them as remote as Hawaii and Alaska and so on. 

For them to speak clearly, for us to speak clearly, is much more 

difficult with so many people speaking and so many people listening, than perhaps a smaller circuit, a smaller court like the First 

or Third Circuit. It is much larger than any of us would like to 

have courts of appeals be, but it is a very difficult problem. 

Mr. BERMAN. Are you calling for more circuits? 

Judge KOZINSKI. Certainly not. I think we can do the job quite 

well. 

Mr. BERMAN. I was curious, you made a comment in response to 

Mr. Schmier that if you had—I guess the word is ‘‘nonpublished′′—

but if you had to have precedent decisions on every single case you 

ruled on, on many of those cases you might write shorter, less 

clearly, your thought processes because of the danger of a lawyer 

twisting something you said in a situation where you wouldn’t have 

had the time to make all the distinctions you might have liked to 

have made, because you are now having to deal with all of those 

issues. 

My guess is also that another judge—it is not just lawyers sometimes twist these things, but other judges could also look at it. Did 

you want to respond to that? 

Mr. SCHMIER. Yes, I would, because I think that is really at the 

crux of the problem. The question is what do we mean by the word 

‘‘precedent’’? What we mean by the word ‘‘precedent’’ is only that 

which was allowed before. All we ask of the judges is that when 

they hear a case, when they hear an argument, that they either 

abide by precedent, they distinguish it, or they overrule it, but they 

don’t ever ignore it. And that is why the citation is so important. 

The citation is so important because every judge, when he or she 

writes an opinion, has to know that that opinion is going to be 

looked at either now or 5 years from now or 10 years from now, 

and that makes that judge walk around their opinion and look at 

it from every possible perspective. 

59

That is what guarantees the people who stand alone before 

judges that their decisions are going to be accurate, and it is the 

removal of that citation that then says to the judges, hey, I don’t 

have to be careful, I don’t have to think about how this is going 

to play out in the future. And that frees them from the rule of law. 

I ask you this question: What mechanism—what mechanism controls the caprice of judges? What controls their discretion if they 

are free to make rules of ephemeral application? Judge Kozinski in 

Sorchini versus the City of Covina has insisted that judges have 

the clear ability to, one, ignore precedent; two, to make decisions 

that don’t make precedent; and, three, to make decisions of ephemeral application. 

Mr. BERMAN. Was that a decision that can be cited? 

Mr. SCHMIER. That is a decision that can be cited. I believe that 

what will remain from Sorchini versus the City of Covina is that 

it is authority for someone that the rule of law has ended. So concerned was the City of Covina that despite the fact they won that 

case, they brought that to your Committee’s attention. 

Mr. BERMAN. I am just curious, was there a petition for a writ 

on that case? The Supreme Court could also look at an uncited 

opinion, right? All the appellate rights continue? 

Judge KOZINSKI. There was no petition for rehearing. 

Mr. SCHMIER. Because they won. The important point for this 

Committee’s attention in Sorchini is that Judge Kozinski’s court 

took the basic issue, which was that the police released the dog 

which bit someone without announcing—that bit a potential arrestee—without announcing it. And despite the fact that the appellate court dealt with that in a case called Kish, and dealt with it 

again in an unpublished portion of the decision, not the published 

part I was talking about, so now the appellate court has decided 

that issue twice, and it still doesn’t stand as any kind of law that 

could deter litigation. The question we have is how come they don’t 

have the time to do it right, but they seem to have the right to do 

these cases over and over? 

Mr. BERMAN. I am sorry. My time has expired. 

Mr. COBLE. We will go for a second round. Mr. Berman and I are 

here by ourselves. There are no votes being sounded as yet. 

Judge Alito, practically everything we do in this town—strike 

that—practically everything we do, period, has a cost factor. Having said that, let me ask you this: Let’s assume that the Congress 

were to mandate the publication of all decisions. Could you estimate the burden this would place upon the judiciary’s budget and 

how much would it cost to implement it? A ball yard figure. If you 

don’t know, give it to us subsequently. 

Judge ALITO. I don’t know the answer off the top of my head. I 

would have to calculate it. But I can say this, and I am reiterating 

something I think I mentioned briefly in my initial statement. If 

the courts of appeals were required to prepare in every case the 

kind of opinion that is prepared for what we used to call publication, printing in the most common reporter of our decisions—each 

court of appeals judge now prepares between, I would say, 20 to 40 

of those a year depending on the judge and the circuit and factors 

of that nature—that number would have to go up. On my court it 

would be about 100 instead of 30. Let’s say it would be 100. On 

60

Judge Kozinski’s court, I think it would be 150. So it might be necessary just to produce the opinions, it might be necessary to double 

the size of the judiciary or perhaps increase it by even a greater 

factor. 

There would be the additional complication of trying to maintain 

consistency among all those opinions. We try very hard to make 

sure that our opinions are consistent with each other. We circulate 

them to all the members of the court before they are ever sent to 

the printer. So we have an opportunity to point out inconsistencies 

between the opinion that is being proposed and opinions that exist 

with which we are familiar. 

Trying to maintain consistency for this greatly increased body of 

cases would be an additional burden. So I couldn’t quantify what 

increase in membership of the judiciary would be necessary, but I 

have no doubt that it would be very substantial. 

Mr. COBLE. I am sure that issue has been considered. I see Mike 

from AOC is in the audience; May have an opinion on that subsequently. We can talk about that. I guess probably 25 years ago—

perhaps shelf space, for example, it may require more filing space. 

But that probably is not a pertinent deal now since we are in the 

disk age. But anyway, those two issues probably are of some concern. We can kick that around. 

Mr. COBLE. Mr. Schmier, an argument against mandatory citation is that prudent judicial administration requires adherence to 

noncitation rules. How do you respond to that, or what is your 

opinion of that? 

Mr. SCHMIER. I think it is malarkey. I don’t understand really 

any of these points. The citation is the way we reconcile our law. 

What seems to be suggested here is that we will have this body of 

published law that clearly States what courts are supposed to do. 

And the concept of binding precedent which says that courts, even 

panels of the same level, must do the same thing. But if they want 

to violate the law or do something different they just do it in an 

unpublished opinion that doesn’t surface. 

So what has happened is that by taking this rigid control of the 

system, they have actually destabilized the system. What they have 

done is they forced all of the minute changes and rules that have 

to be made in order to accommodate the varying circumstances of 

human beings to go underground. And that is the problem. It is 

much better if every panel looks at each case. They abide by stare 

decisis, which gives them respect for stability, but they are free to 

do what is required. 

I say this, look, precedent should be strong enough to stand 

against every force except reason and mercy. That is what the rule 

should be. This binding precedent is wrong because it makes it impossible for judges to correct error without this en banc proceeding. 

If they get rid of that, then there is no problem with panels looking 

at each other’s decisions and talking about them. Inconsistency is 

where we learn both in the scientific community and in the legal 

community. It is what draws our attention to problems and it is 

what invokes the whole democracy, the law schools, the legislatures, the community groups and the industry groups, all these 

people to weigh in on what our law should be. And when they 

make all our cases uncitable, they get rid of the sweet flower that 

61

attracts our attention to these cases and they make it impossible, 

truly impossible on a systemic basis for the democracy to operate. 

Judge KOZINSKI. Mr. Schmier has put his finger on an important 

point. What he says is the reason we can go with his system where 

we publish everything is we should not have a rule that panels of 

the Ninth Circuit or panels of the Third Circuit are bound by earlier rulings of the same circuit. We can look at the published opinion of another panel and say gee, we don’t agree. Goodness or 

mercy tells us we shouldn’t go the same way. 

That is not how the Federal courts operate, and in fact, there is 

no State court system that operates in that way. When you have 

a court of 28 judges or 24 judges or 22 judges who sit on panels 

of three, the only sensible rule, the only workable rule, is that 

when a panel of three judges decides an issue, that is binding, that 

is binding on every district judge, every bankruptcy judge, every 

magistrate judge and every circuit judge in the circuit unless you 

go to the burden of going en banc, which is a huge expensive difficult process. 

And if Mr. Schmier is suggesting we just jettison the en banc 

process and let every panel of every circuit say we looked at this 

and we choose to ignore it, we are talking about revamping how 

the Federal courts do business in a way again that will lead to 

chaos. 

To answer the Chairman’s question I think you would have to 

multiply by 20 times the size of the Federal Judiciary to get published opinions—— Mr. COBLE. If you would, give us some estimated figures on that, 

if you will. 

Judge KOZINSKI. My estimation would be on the neighborhood of 

20 times. The example I give in my testimony is imagine we 

asked—the Supreme Court just handed down 80 opinions, complex, 

difficult, often contested issues. Imagine if we asked the Supreme 

Court to publish 1,600 cases a year because there is not enough 

consistent law there. You can’t—there is no way they could do it. 

There is no way they could do it. You would have to increase the 

number of justices, which then would mean you would have a different institution, a different court and a very different way of 

making decisions. These are very fundamental things we are purporting to change and when Mr. Schmier says get rid of the en 

banc process I am sure he is talking more. 

Mr. COBLE. I am sure my 5 minutes have expired. Let me recognize Mr. Berman. 

Mr. BERMAN. Well, the Supreme Court would then have to resolve not conflicts between circuits, but conflicts between panels 

within a circuit. 

Judge KOZINSKI. Exactly right. 

Mr. BERMAN. But your experience—your very bad experience, I 

take it, was with the California and the California State court system am I right about that? When you first started to testify, you 

spoke of—— Mr. SCHMIER. That’s correct, but there are others here who can 

could say the exact same circumstance. 

Mr. BERMAN. But I am trying—I have a memory not that long 

ago of a huge hullabaloo in California. Was it about the California 

62

Supreme Court certifying for nonpublication a decision of a Court 

of Appeals? In other words, the Court of Appeals didn’t want to 

keep it from having precedential value, but the Supreme Court, 

rather than taking the case and reversing the case, instead came 

in and depublished it. 

Judge KOZINSKI. That is the term of art. 

Mr. SCHMIER. The fundamental flaw I see in California’s unique 

depublication practice—the word itself doesn’t show up in the law 

dictionaries, and that is that they simply erase it as precedent is 

that it allows the Supreme Court to change the law for the State 

without changing the result for the parties. It disconnects the ability of a party to hold the law hostage, that is, the law for everybody 

hostage in order to insist on the right result for the one person. 

It is this—in this context that one begins to see how all of our 

rights vis-a-vis our Government are violated by the no citation rule. 

You see, they can’t—the way our system works is that Government 

cannot act against an individual without—without the imprimatur 

of the court. And every person in our country has the right to elevate that decision of the court to an appellate court where, through 

the process, they can insist that that decision of what the Government is doing to that person becomes law for everyone. 

And it is the fact that it is law for everyone that concerns everyone and rallies people to the defense of the individual. That process 

has been disconnected and severed so that it no longer protects us. 

That is why this is a fundamental issue. 

Mr. BERMAN. I mean, I am not sure that that is why people go 

to court to make law for everybody as opposed to try to get justice 

for themselves. 

Mr. SCHMIER. How about a test case. How do you bring a test 

case in Judge Kozinski’s court? 

Mr. BERMAN. They are not pursuing test cases, but pursuing 

cases. There are certainly other situations, I agree. 

Judge KOZINSKI. May I comment on Mr. Schmier? Whether or 

not something is published is not up to the whim of the judges. We 

have legal standards for when we publish. One very simple way of 

testing it, if I have to write a disposition and I can’t cite a Ninth 

Circuit case on point I publish, and I think that is a rule of most 

of my colleagues. It has to be a Ninth Circuit case directly controlling. 

Now there is always this undercurrent, as Mr. Schmier points to, 

that lawyers always say, oh, there is all this law being made. It 

is unaccountable. It is underground and all these unpublished 

things go contrary to the law, and basically judges are free to do 

anything they want. So we actually looked into it. We sent out letters and memoranda and requests to lawyers. We put it on our web 

site and we asked for comments and asked anybody to send us—

we put out thousands of these a year—to send us two unpublished 

dispositions that were in conflict, either with another disposition or 

with a published one. 

We got six answers, two of them had merit and they both dealt 

with conflicts in published opinions. And they were conflicts of 

which we were already aware and we are in the process of fixing. 

We have another initiative which is still in progress where we 

allow the citation of unpublished dispositions in requests for publiVerDate Jan 17 2002 11:33 Aug 08, 2002 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6601 G:\WORK\COURTS\062702\80454.000 HJUD1 PsN: 80454
63

cation. The idea would be look, you need to publish this because 

you don’t really have any published law on point. The experiment 

has been going on for 15 months. We have been monitoring it very 

closely and nothing has come in that—and the Committee, if it 

wishes, can have these materials open to the public—but there is 

nothing that has come in that supports the view that there is lawlessness out there or renegade panels or unpublished dispositions 

that are being used to sweep unacceptable results under the rug. 

Unpublished dispositions are cases that are squarely controlled 

by existing precedent, squarely controlled by existing Ninth Circuit 

opinion, that and nothing more. 

Mr. BERMAN. I have one more question, Mr. Chairman. My time 

has run out. 

Mr. COBLE. Ms. Waters, do you have any questions? 

Ms. WATERS. I have no questions. 

Mr. COBLE. Go ahead and ask your question, Howard. 

Mr. BERMAN. My last question, assuming that we agree—we decide we don’t like this system, we want everything citable, published, have precedential value, do we have the authority to legislate in this area? 

Professor Hellman. 

Mr. HELLMAN. I think it is very doubtful. I think it would raise 

some very grave separation of powers issues. And it seems to me 

that on the immediate issues we are talking about today, citation 

rules, precedential status, it is really very hard for me to see a role 

for Congress on that. But let me just add something else to that, 

because one of the things that strikes me a little bit listening to 

Judge Kozinski and Judge Alito, you don’t have to dig very far into 

this subject before you start asking a question, that is, I guess one 

step from a question that has already been asked, are there enough 

appellate judges today to do the job. 

Put aside what additional requirements you might add or asking 

the judges to do more, are there enough judges to do the job today 

in the way we would like them to do their job. And if there are not 

enough, then there is only one branch of Government that can create new judgeships and that is Congress. 

Now I recognize the political realities and they seem to get worse 

everyday on the other side of the Hill. But one of the great virtues 

of an oversight hearing is that you can look to the long-term. And 

one of the things I would hope this Subcommittee would do from 

this perspective is to ask the question taking into account all the 

things that we would like the judges to do, to write for the parties, 

to be accountable, to come up with a coherent and sensible body 

of law, are there enough judges today and if there are not, maybe 

Congress should be thinking about creating some new judgeships 

as the Administrative Office and the Judicial conference have 

asked for. So, in terms of a constructive response——

Mr. BERMAN. And a couple Senate judiciary Committees to confirm that. 

Mr. HELLMAN. That would be wonderful and something that 

folks over here I know have no control over at all and indeed lawyers. 

Mr. COBLE. Professor Hellman you are reading my mind because 

I was going to tack on what Mr. Berman said earlier and I believe 

64

in your statement you made reference to the argument posed by 

Judge Kozinski that not having sufficient time or not being able to 

write more complete opinions because of the lack of time, but I was 

going to say one of the problems might be an insufficient number 

of sitting judges. There may be enough—spots for judges, but an 

inadequate number of sitting judges. I assume you concur with 

that. 

Mr. HELLMAN. Yes. And I think it is something that warrants a 

very close look because if you look at what has happened, and 

again, this gets beyond the subject of today’s hearing, but not much 

because to the extent that judges are doing less than they think 

the case really calls for because there are too many cases then Congress does have a role and that is to provide adequate judicial 

power. 

Mr. COBLE. I hope you will hold us harmless because, Ms. Waters and Mr. Berman, and I don’t have the authority to appoint 

judges. Did you want to say something, Ms. Waters? 

Mr. BERMAN. I do have one thing I want to say, and that is all 

right, you are throwing out a proposition here, more judges, fewer 

reasons to go noncitable because—but I am wondering to what extent in the judicial process—I am sure it is not a written standard, 

this case is simple, it is boring, it is easy to decide and it is so clear 

cut, so covered by existing law, so straightforward and so 

uninteresting that I rather take the additional time to deal with 

the more interesting, more complicated cases, and I am going to go 

uncitable. 

Mr. HELLMAN. If I might respond to that. Yes, and I don’t want 

to give a wrong impression that there are lots of cases that deserve 

no more than they get. They would not get any more. They should 

not get any more judges’ time even if there were 10 or 20 times 

as many judges. But I have here—this is the Federal appendix we 

have heard so much about. These are the unpublished opinions— not hard-covered version but the soft-covered version. If you were 

to browse through that, you would say that most of those cases got 

just about the treatment they deserve, a written opinion, but not 

precedential. 

Mr. COBLE. Gentlemen let me conclude by thinking aloud. The 

Advisory Committee on Appellate Rules tentatively approved a proposal for an amendment that would allow litigants to cite nonprecedential decisions for persuasive value. If this change is subsequently adopted by the Congress and applied uniformly throughout 

the circuits, are the problems we have discussed today solved, A; 

and B, if not, what should Congress do? Does anybody want to 

weigh in on that before we drop the hook on this meeting? Mr. 

Schmier? 

Mr. SCHMIER. I think in large measure——

Mr. COBLE. As briefly as you can. 

Mr. SCHMIER. That would address the freedom of speech issue 

and it would address, in many ways, the stare decisis issue, only 

because stare decisis is a natural motivation. But I think really 

they must be accorded the status of precedent. That doesn’t mean 

it is binding on anybody. It means only that they must be considered. And if that were the rule, I would find that acceptable. 

Mr. COBLE. Anyone else want to be heard? 

65

Judge KOZINSKI. I think it would exacerbate the problem. I think 

that so long as the unpublished dis lets us write to the parties who 

know everything about the case, who know the intricacies, we can 

be very brief. As soon as these things are going to be used by other 

people who don’t know the intricacies, then you have to be sure 

that what you put in there is enough to make it useful and not 

misleading. 

Judge ALITO. Well, because my committee is going to be voting 

finally on this in November, I don’t think should say whether I 

think it is a good idea. I think it would resolve one of the three 

questions that I mentioned at the outset, and the only one I believe 

that is properly—that needs to be addressed that may properly be 

addressed through the rules process at this time. 

Mr. HELLMAN. I agree with Judge Alito on that last point. 

Mr. COBLE. Gentlemen, we thank you for your attendance today 

and we very much appreciate your contribution. This concludes the 

oversight hearing of unpublished judicial opinions. The record will 

remain open for 1 week, so if anything crosses your train of 

thought, feel free to submit it to us. And thank you again for your 

attendance and the Subcommittee stands adjourned. 

[Whereupon, at 3:30 p.m., the Subcommittee was adjourned.] 

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224


Hart16.eps
225


Hart17.eps
226


Hart18.eps
227


Hart19.eps
228


Hart20.eps
229


Hart21.eps
230


Hart22.eps
231


Hart23.eps
232


Hart24.eps
233


Hart25.eps
234


Hart26.eps
235


HTWIR1.eps
236


HTWIR2.eps
237


Schwarz1.eps
238


Schwarz2.eps
239


Schwarz3.eps
240


Schwarz4.eps
241


Schwarz5.eps
242


Schwarz6.eps
243


Schwarz7.eps
244


Schwarz8.eps
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Schwarz9.eps
246


Schwarz10.eps
247


Schwarz11.eps
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Schwarz12.eps
249


Schwarz13.eps
250


Schwarz14.eps
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Schwarz15.eps
252


Schwarz16.eps
253


Schwarz17.eps
254


Schwarz18.eps
255


Schwarz19.eps
256


Schwarz20.eps
257


Schwarz21.eps
258


Schwarz22.eps
259


Schwarz23.eps
260


Schwarz24.eps
261


Schwarz25.eps
262


Schwarz26.eps
263


Schwarz27.eps
264


Schwarz28.eps
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Schwarz29.eps
266


Schwarz30.eps
267


Schwarz31.eps
268


Schwarz32.eps
269


Schwarz33.eps
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Schwarz34.eps
271


Schwarz35.eps
272


Schwarz36.eps
273


Schwarz37.eps
274


Schwarz38.eps
275


Schwarz39.eps
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Schwarz40.eps
277


Schwarz41.eps
278


Schwarz42.eps
279


Barnett.eps
280


JAPP1.eps
281


JAPP2.eps
282


JAPP3.eps
283


JAPP4.eps
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JAPP5.eps
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JAPP6.eps
286


JAPP7.eps
287


JAPP8.eps
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JAPP9.eps
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JAPP10.eps
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JAPP11.eps
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JAPP12.eps
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JAPP13.eps
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JAPP14.eps
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JAPP15.eps
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JAPP16.eps
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JAPP17.eps
297


JAPP18.eps
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JAPP19.eps
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JAPP20.eps
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JAPP21.eps
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JAPP22.eps
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JAPP23.eps
303


JAPP24.eps
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JAPP25.eps
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Lewin1.eps
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Lewin2.eps
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Lewin3.eps
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Lewin4.eps
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Lewin5.eps
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Lewin6.eps
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Lewin7.eps
312


Lewin8.eps
313


Lewin9.eps
314


Lewin10.eps
315


Lewin11.eps
316


Lewin12.eps
317


Lewin13.eps
318

Æ


Lewin14.eps