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23

RESPONSE 

THE CITATION OF UNPUBLISHED OPINIONS IN 

THE FEDERAL COURTS OF APPEALS 

Patrick J. Schiltz∗

The Advisory Committee on the Federal Rules of Appellate Procedure 

(“Advisory Committee”) has proposed adding a new Rule 32.1 to the 

Federal Rules of Appellate Procedure (“FRAP” or “Appellate Rules”). The 

new rule1 would authorize litigants in the federal courts of appeals to cite in 

their briefs and other papers the unpublished opinions of those courts. This 

seemingly modest proposal—in essence, a proposal that someone appearing 

before a federal court may remind the court of its own words—is 

extraordinarily controversial. Over 500 public comments have been 

submitted by supporters and opponents of Rule 32.1.2

Only once before in the history of federal rulemaking has a proposal 

attracted more comments. In 1993, the Advisory Committee on the Federal 

∗ St. Thomas More Chair in Law, University of St. Thomas (Minnesota) School of Law, and 

Reporter, Advisory Committee on the Federal Rules of Appellate Procedure. I am grateful 

for the research assistance of Erika Toftness.

 1. Proposed Rule 32.1 has been revised several times, as has the accompanying 

Committee Note. The version of the rule and Committee Note that was published for 

comment in August 2003 appears in an appendix to this Article. I will refer to that version 

in this Article, as it is the version to which all of the public comments were directed. The 

current version of the rule, which differs in only minor respects from the published version, 

is as follows: 

Rule 32.1. Citing Judicial Dispositions 

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal 

judicial opinions, orders, judgments, or other written dispositions that have been 

designated as “unpublished,” “not for publication,” “non-precedential,” “not 

precedent,” or the like. 

(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or 

other written disposition that is not available in a publicly accessible electronic 

database, the party must file and serve a copy of that opinion, order, judgment, or 

disposition with the brief or other paper in which it is cited. 

Memorandum from Judge Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules, 

to Judge David F. Levi, Chair, Standing Comm. on Rules of Practice & Procedure 2 (May 6, 

2005), available at http://www.uscourts.gov/rules/Reports/AP5-2005.pdf [hereinafter May 

2005 Report]. 

 2. The comments are available on CD-ROM from the Administrative Office of the U.S. 

Courts and online from the “Secret Justice” website at 

http://www.secretjustice.org/public_comments_re_frap_32_1.htm (last visited Aug. 22, 

2005). 
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24 FORDHAM LAW REVIEW [Vol. 74 

Rules of Civil Procedure proposed to amend Civil Rule 30. The existing 

rule required that depositions be recorded stenographically (i.e., by a court 

reporter) unless all of the parties agreed on another method of recording. 

The proposed amendment authorized the party taking the deposition to 

select the method of recording. The nation’s court reporters—fearing that 

the amendment would lead to less stenography and therefore less income 

for court reporters—submitted hundreds of comments opposing the 

amendment.3 The amendment was nevertheless approved. 

Although it has attracted fewer comments, proposed Rule 32.1 is even 

more controversial. Most of the comments on Civil Rule 30 were 

preprinted postcards sent in by one group (court reporters) motivated by one 

concern (lost income). By contrast, the comments on Rule 32.1 have been 

individually drafted (albeit sometimes cribbed from “talking points” 

distributed by opponents of the rule4) and submitted by a broad range of 

commentators who have expressed a broad range of concerns. Most 

comments have been at least a page or two in length; some have been much 

longer, and some have included lengthy attachments. Comments have been 

submitted on behalf of most of the federal appellate bench; many other 

judges (federal and state; appellate and trial; active, senior, and retired); 

scores of attorneys from all segments of the profession; two dozen law 

professors; several prominent bar organizations and public-interest groups; 

and a number of ordinary citizens. Proposed Rule 32.1 is, without question, 

one of the most controversial proposals in the history of federal 

rulemaking.5

The purpose of this Article is fourfold. First, I will briefly describe the 

events that led to the publication for comment of Rule 32.1.6 Second, I will 

summarize the arguments that commentators have made for and against 

Rule 32.1.7 Third, I will describe the findings of two new studies—one by 

the Federal Judicial Center (“FJC”)8 and the other by the Administrative 

 3. My information about the number and nature of these comments comes from 

conversations with two long-time employees of the Administrative Office of the U.S. Courts: 

Peter G. McCabe, Assistant Director, Office of Judges Programs, and John K. Rabiej, Chief, 

Rules Committee Support Office. 

 4. Those “talking points” have been attached to or incorporated in many of the 

comments. See, e.g., Letter from Eric C. Liebeler, Kirkland & Ellis LLP, to Peter G. 

McCabe, Sec’y, Comm. on Rules of Practice & Procedure (Dec. 2, 2003), available at 

http://www.secretjustice.org/pdf_files/Comments/03-AP-025.pdf [hereinafter Liebeler 

Letter] (Comment 03-AP-025) (attaching three pages of talking points entitled “Why 

Proposed Rule 32.1 Is A Bad Idea”). 

 5. I tried to explain why people feel so passionately about this seemingly unimportant 

issue in Patrick J. Schiltz, Much Ado About Little: Explaining the Sturm Und Drang over the 

Citation of Unpublished Opinions, 62 Wash. & Lee L. Rev. (forthcoming 2005). 

6. See infra Part I. 

7. See infra Part II. 

8. See Tim Reagan et al., Fed. Judicial Ctr., Citations to Unpublished Opinions in the 

Federal Courts of Appeals (2005). The Federal Justicial Center (“FJC”) is the major 

research and training arm of the federal judiciary. Among its purposes are “to conduct 

research and study of the operation of the courts of the United States,” 28 U.S.C. § 620(b)(1) 

(2000), and “to develop and present for consideration by the Judicial Conference of the 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 25 

Office of the U.S. Courts (“AO”)9—that explore whether any of these 

arguments are supported or refuted by empirical evidence.10 Finally, I will 

share some reflections about Rule 32.1,11 which is still wending its way 

through the Rules Enabling Act (“REA”) process.12

Before I begin, I should make clear that I am not a disinterested party. I 

have served as Reporter to the Advisory Committee since 1997, and, in that 

capacity, I have been responsible for drafting Rule 32.1 and the 

accompanying Committee Note, reading and summarizing all of the 

comments on Rule 32.1, and giving advice to the Advisory Committee 

about how to proceed with Rule 32.1. I have spent hundreds of hours 

working on Rule 32.1 for the Advisory Committee, and much of this Article 

is derived from that work.13 I emphasize that the views expressed in this 

United States recommendations for improvement of the administration and management of 

the courts of the United States,” id. § 620(b)(2). The Judicial Conference is the policymaking arm of the federal judiciary. It is headed by the Chief Justice of the United States 

and consists of twenty-seven members: the Chief Justice, the chief judges of the thirteen 

courts of appeals, the chief judge of the Court of International Trade, and a district judge 

from each of the twelve geographic circuits. See 28 U.S.C. § 331. The Conference typically 

meets twice each year about a wide range of matters, including proposed amendments to the 

federal rules of practice and procedure. See id. 

9. See Memorandum from John K. Rabiej, Chief, Rules Comm. Support Office, 

Admin. Office of the U.S. Courts, to Advisory Comm. on Appellate Rules (Feb. 24, 2005) 

[hereinafter Rabiej Memorandum] (on file with author). The Administrative Office of the 

U.S. Courts (“AO”) is the administrative arm of the federal judiciary, responsible for 

assisting the federal courts by providing administrative support, program management, and 

policy development. The AO is also charged with implementing the policies of the Judicial 

Conference and supporting the committees that work on behalf of the Conference, including 

the five advisory committees and the Committee on Rules of Practice and Procedure. See

Administrative Office of the U.S. Courts, http://www.uscourts.gov/adminoff.html (last 

visited Aug. 22, 2005). The Committee on Rules of Practice and Procedure—commonly 

known as the “Standing Committee”—is charged with reviewing the recommendations of 

the advisory committees and recommending changes in the rules of practice and procedure 

to the Judicial Conference. 28 U.S.C. § 2073(b). 

10. See infra Part III. 

11. See infra Part IV. 

 12. The Rules Enabling Act, 28 U.S.C. § 2072, established the basic procedural 

framework for amending the rules of practice and procedure (including the Federal Rules of 

Appellate Procedure (“FRAP” or “Appellate Rules”)). Today, the process typically includes 

eight steps: (1) the Advisory Committee recommends the proposed amendment for 

publication; (2) the Standing Committee approves the proposed amendment for publication; 

(3) the proposed amendment is published and public comment is received; (4) the Advisory 

Committee, after reviewing the public comment, approves the proposed amendment; (5) the 

Standing Committee approves the proposed amendment; (6) the Judicial Conference 

approves the proposed amendment at its fall meeting; (7) the U.S. Supreme Court approves 

the proposed amendment by the following May 1; (8) the proposed amendment takes effect 

on December 1, unless Congress passes legislation blocking it. See 28 U.S.C. §§ 2071-2077; 

Leonidas Ralph Mecham, Admin. Office of the U.S. Courts, The Rulemaking Process: A 

Summary for the Bench and Bar (2004), available at

http://www.uscourts.gov/rules/proceduresum.htm. 

 13. This Article is adopted in part from two memoranda that I drafted. The first was a 

memorandum from me to members of the Advisory Committee. See Memorandum from 

Patrick J. Schiltz, Reporter, Advisory Comm. on Appellate Rules, to Advisory Comm. on 

Appellate Rules (Mar. 18, 2004) (on file with author). (My memorandum was later 

converted into a May 2004 report from the Advisory Committee to the Standing Committee. 
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26 FORDHAM LAW REVIEW [Vol. 74 

Article are mine alone and not necessarily those of the Advisory Committee 

or any of its present or former members. 

I. THE BACKGROUND

Last year, the federal courts of appeals disposed of 56,381 cases.14 Over 

half of those were either “procedural” terminations (26,835) or terminations 

brought about through “Consolidations & Cross Appeals” (2108).15 The 

remainder (27,438) were terminations “on the merits”—that is, cases in 

which the parties submitted briefs and the court rendered a decision after 

considering the facts and the law.16

In general, dispositions on the merits can be grouped into three 

categories. In the first category are dispositions that are accompanied by a 

“published” opinion—that is, an opinion that is published in West’s Federal 

Reporter and that is universally recognized as creating binding precedent.17 

Less than nineteen percent of the cases disposed of on the merits last year 

resulted in published opinions.18 In the second category are dispositions 

that are accompanied by an “unpublished” opinion—that is, an opinion that 

is not published in the Federal Reporter and that, in almost all circuits, is 

not considered to create binding precedent.19 Last year, over eighty-one 

percent of the merits dispositions resulted in unpublished opinions.20 In the 

third category are dispositions that are not accompanied by any opinion—

published or unpublished. These dispositions are often referred to as 

See Memorandum from Judge Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate 

Rules, to Judge David F. Levi, Chair, Standing Comm. on Rules of Practice & Procedure 

(May 14, 2004), available at http://www.uscourts.gov/rules/Reports/AP5-2004.pdf 

[hereinafter May 2004 Report]). The second was a May 2005 report from the Advisory 

Committee to the Standing Committee. See May 2005 Report, supra note 1. 

14. See Admin. Office of the U.S. Courts, Fed. Court Mgmt. Statistics 2004, Courts of 

Appeals, http://www.uscourts.gov/cgi-bin/cmsa2004.pl (follow “National Totals” hyperlink). 

This figure does not include the work of the Federal Circuit, which categorizes workload 

data differently than the other twelve circuits. 

15. Id. “Procedural” terminations are appeals that were dropped after the case was 

settled or the appellant decided not to proceed. 

16. Id.

 17. Scholars disagree about what it means to treat a decision of a court as “precedent” or 

“binding precedent.” When I use those terms, I am resorting to what Polly J. Price described 

as the “traditional” definition of precedent—“that the holding of a case . . . must either be 

followed, distinguished, or overruled.” Polly J. Price, Precedent and Judicial Power After 

the Founding, 42 B.C. L. Rev. 81, 86 (2000). I use the traditional definition not because I 

wish to endorse it—I do not know enough to have a position—but because commentators 

who refer to “precedent” or “binding precedent” in the debate over Rule 32.1 almost 

invariably have in mind the traditional definition. 

18. See Leonidas Ralph Mecham, Admin. Office of the U.S. Courts, Judicial Business of 

United States Courts Supplemental Table, 2004 Annual Report of the Director 39 tbl.S-3 

(2004), available at http://www.uscourts.gov/judbus2004/tables/s3.pdf [hereinafter Judicial 

Business]. Those published opinions include 4782 that were “signed” (i.e., attributed to a 

specific author) and 366 that were “unsigned” (i.e., issued per curiam). 

 19. “Unpublished opinion” is, of course, a misnomer, given that many unpublished 

opinions are published (in West’s Federal Appendix and elsewhere). But it is has become a 

term of art within the legal profession. 

20. See Judicial Business, supra note 18, at 39 tbl.S-3. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 27 

“judgment orders” or “summary dispositions.” They are one-line orders 

that simply affirm (or, rarely, reverse) the decision below without providing 

any explanation for the court’s action. Only about three percent of last 

year’s merits dispositions resulted in judgment orders.21

Proposed Rule 32.1 addresses only one category of dispositions: 

unpublished opinions. And Rule 32.1 addresses only one question about 

unpublished opinions: Can they be cited? Rule 32.1 does not address any 

other question, including the question whether Article III of the U.S. 

Constitution requires a federal court to treat all of its opinions (published or 

not) as precedent. (This issue is often referred to as “the Anastasoff issue,” 

after a decision of the U.S. Court of Appeals for the Eighth Circuit22—later 

vacated—holding that a federal court is indeed required to treat all of its 

prior decisions as precedent.) In the words of the Committee Note to Rule 

32.1, 

 Rule 32.1 is extremely limited. It takes no position on whether 

refusing to treat an “unpublished” opinion as binding precedent is 

constitutional. It does not require any court to issue an “unpublished” 

opinion or forbid any court from doing so. It does not dictate the 

circumstances under which a court may choose to designate an opinion as 

“unpublished” or specify the procedure that a court must follow in making 

that decision. It says nothing about what effect a court must give to one 

of its “unpublished” opinions or to the “unpublished” opinions of another 

court. The one and only issue addressed by Rule 32.1 is the citation of 

judicial dispositions that have been designated as “unpublished” or “nonprecedential” by a federal or state court—whether or not those 

dispositions have been published in some way or are precedential in some 

sense.23

In short, Rule 32.1 addresses only the simple question whether a litigant 

who submits a paper to, say, the Second Circuit may cite in that paper an 

unpublished opinion of the Second Circuit (or any other federal court).24

This question is not addressed—one way or another—in FRAP. Instead, 

it is addressed by the local rules of the thirteen circuits. The circuits take 

21. See id.

22. 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). 

23. See Comm. on Rules of Practice & Procedure of the Judicial Conference of the U.S., 

Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, 

Civil, and Criminal Procedure 33-34 (2003) [hereinafter Preliminary Draft] (citation 

omitted). 

 24. No court prohibits all citation of unpublished opinions. Rather, every circuit allows 

an unpublished opinion issued in a related case to be cited—for example, to support an 

assertion of issue preclusion or double jeopardy. Where circuits differ is in the degree to 

which they permit an unpublished opinion issued in an unrelated case to be cited. Typically, 

a party seeks to cite such an opinion for the same reason that the party might cite the opinion 

of a district court or a foreign court: not because the opinion binds the court of appeals, but 

because the party hopes that the court of appeals will be persuaded by the opinion’s 

reasoning or result. When I refer in this Article to the “citation of unpublished opinions,” I 

am referring only to this latter type of citation—the type of citation that is the focus of the 

controversy over Rule 32.1. 
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28 FORDHAM LAW REVIEW [Vol. 74 

three approaches. Four “restrictive”25 circuits—the Second, Seventh, 

Ninth, and Federal—altogether ban the citation of unpublished opinions.26 

Six “discouraging” circuits—the First, Fourth, Sixth, Eighth, Tenth, and 

Eleventh27—discourage parties from citing unpublished opinions but permit 

it in some circumstances (typically, when no published opinion adequately 

addresses the same issue as the unpublished opinion). Three “permissive” 

circuits—the Third, Fifth, and D.C.—freely permit such citation.28

Like nature, appellate lawyers abhor a vacuum—at least when the 

vacuum is in FRAP and the vacuum is filled with conflicting and 

sometimes confusing local rules. The appellate bar also abhors any rule 

that functions as a gag order, dictating to lawyers what they may and may 

not argue on behalf of their clients. As a result, appellate lawyers (and 

others) have for years been urging the Advisory Committee to propose 

national rules that would force the circuits to permit the citation of 

unpublished opinions. I have elsewhere detailed these efforts and the 

tortured history of the Advisory Committee’s consideration of the 

unpublished-opinions issue.29 A very brief recap will suffice for purposes 

of this Article. 

The issue was first added to the Advisory Committee’s study agenda in 

1991 at the behest of the Federal Courts Study Committee,30 which 

expressed concern about the “many problems” created by “non-publication 

policies and non-citation rules,”31 and at the behest of the Local Rules 

Project,32 which recommended that unpublished opinions should be 

governed by consistent national standards rather than by inconsistent local 

 25. The categorization and terminology are taken from the FJC’s report. See Reagan et 

al., supra note 8, at 1. 

26. See 2d Cir. R. 0.23; 7th Cir. R. 53(b)(2)(iv), 53(e); 9th Cir. R. 36-3(b); Fed. Cir. R. 

47.6(b). 

27. See 1st Cir. R. 32.3(a)(2); 4th Cir. R. 36(c); 6th Cir. R. 28(g); 8th Cir. R. 28A(i); 

10th Cir. R. 36.3(B); 11th Cir. R. 36-2. 

28. See 3d Cir. Internal Operating P. 5.7; 5th Cir. R. 47.5.4; D.C. Cir. R. 28(c)(1). The 

Fifth Circuit’s rule applies only to unpublished opinions issued on or after January 1, 1996, 

and the D.C. Circuit’s rule applies only to unpublished opinions issued on or after January 1, 

2002. 

29. See Schiltz, supra note 5. 

 30. The Federal Courts Study Committee was created by Congress in 1988 and charged 

with studying the American judicial system and making recommendations for improvement. 

See Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642 

(codified in scattered sections of 28 U.S.C. (2000)). 

31. See Fed. Courts Study Comm., Report of the Federal Courts Study Committee 130 

(1990). 

 32. The Project was authorized by the Judicial Conference and operated under the 

auspices of the Standing Committee. See Report of the Proceedings of the Judicial 

Conference of the United States: September 19-20, 1984, at 67 (1984). The Project was a 

massive, multi-year undertaking, involving a close review of the 5000-plus local rules in 

effect in the federal courts at the time. See Comm. on Rules of Practice & Procedure of the 

Judicial Conference of the U.S., Report of the Local Rules Project (1988). 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 29 

rules.33 The issue languished on the agenda of the Advisory Committee 

until 1998, when the Advisory Committee voted not to pursue it after a 

survey of the chief judges of the circuits revealed almost unanimous—and, 

on the whole, quite passionate—opposition to rulemaking on the topic of 

unpublished opinions.34

After about a thirty-month hiatus, the issue was put back on the Advisory 

Committee’s agenda by the Solicitor General of the United States,35 who 

serves as a member of the Advisory Committee. Although Judge Will 

Garwood (then the chair of the Advisory Committee) and I both argued that 

the Advisory Committee should not proceed in light of the strong views that 

the chief judges had expressed less than three years earlier,36 we were in the 

minority. The Advisory Committee decided to press ahead. The Advisory 

Committee’s efforts eventually culminated in the publication of proposed 

Rule 32.1. 

Rule 32.1 was published for comment—along with several other 

proposed amendments to FRAP—in August 2003.37 By February 2004, 

when the comment period closed, the Advisory Committee had received 

513 written comments about the proposed rules.38 Almost all of those 

comments addressed Rule 32.1; only nine comments did not mention Rule 

32.1 at all.39 Interestingly, about seventy-five percent of all comments (pro 

and con) regarding Rule 32.1—and about eighty percent of the comments 

opposing Rule 32.1—came from a single circuit (the Ninth).40

33. See Memorandum from Daniel R. Coquillette, Reporter, Comm. on Rules of Practice 

& Procedure, and Mary P. Squiers, Director, Local Rules Project, to Comm. on Rules of 

Practice & Procedure 68 (Jan. 14, 1991) (on file with author). 

34. See Minutes of the Spring 1998 Meeting of the Advisory Committee on Appellate 

Rules 26-30 (Apr. 16, 1998) [hereinafter Spring 1998 Minutes]. The minutes of all of the 

recent meetings of the Advisory Committee (and of the Standing Committee and the other 

advisory committees) are available on the website maintained by the AO. See Admin. Office 

of the U.S. Courts, Federal Rulemaking, Minutes of Committee Meetings, 

http://www.uscourts.gov/rules/minutes.htm (last visited Aug. 22, 2005). 

35. See Letter from Seth P. Waxman, Solicitor General, to Will Garwood, Chair, 

Advisory Comm. on Appellate Rules (Jan. 16, 2001) (on file with author). 

36. See Minutes of Spring 2001 Meeting of the Advisory Committee on Appellate Rules 

64-65 (Apr. 11, 2001), available at http://www.uscourts.gov/rules/Minutes/app0401.pdf. 

37. See Preliminary Draft, supra note 23, at 1-44. 

 38. In addition, fifteen witnesses testified at a public hearing on April 13, 2004. See

Transcript of Hearing Before Advisory Committee on Appellate Rules (Apr. 13, 2004) 

[hereinafter Hearing Transcript]. All fifteen witnesses testified about Rule 32.1. 

 39. This can be determined by reviewing the summaries of the comments contained in 

the May 2004 Report. See May 2004 Report, supra note 13. 

40. See id. at 2. For example, of the twenty-one law professors who wrote to oppose 

Rule 32.1, see id. at 99-100, only two have no obvious Ninth Circuit connection—that is, a 

Ninth Circuit connection that appears in their online biographies. Seventeen are former 

Ninth Circuit clerks (eight of those seventeen clerked for Judge Alex Kozinski), and two 

others did not clerk on the Ninth Circuit but now teach there. 
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30 FORDHAM LAW REVIEW [Vol. 74 

II. THE ARGUMENTS

When over 500 of the best judges, lawyers, and law professors in 

America get into a fight over a proposed rule, no stone will be left unturned, 

and no argument will be left unmade. In this section, I set forth the main 

arguments that have been made for and against Rule 32.1. I have distilled 

these arguments from the thousands of pages of public comments that have 

been submitted.41

A. Arguments Against Rule 32.1

1. Circuit Autonomy 

A circuit should be free to conduct its business as it sees fit unless there 

is a compelling reason to impose uniformity. This is particularly true with 

respect to measures such as no-citation rules, which reflect decisions made 

by circuits about how best to allocate their scarce resources to meet the 

demands placed on them. 

Circuits confront dramatically different local conditions. Among the 

features that vary from circuit to circuit are the size, subject matter, and 

complexity of the circuit’s caseload; the number of active and senior judges 

on the circuit; the geographical scope of the circuit; the process used by the 

circuit to decide which opinions are designated as unpublished; the time and 

attention devoted by circuit judges to unpublished opinions; and the legal 

culture of the circuit (such as the aggressiveness of the local bar). These 

features are best known to the judges who work within the circuit every 

day. No advisory committee composed entirely or almost entirely of 

outsiders should tell a circuit that it cannot implement a rule that the circuit 

has deemed necessary to handle its workload, unless that advisory 

committee has strong evidence that a uniform national rule is needed to 

solve a serious problem. 

2. Lack of Problems Solved by Rule 32.1 

The Advisory Committee does not have such evidence with respect to 

Rule 32.1. Indeed, the Committee Note fails to identify a single serious 

problem with the status quo that Rule 32.1 would solve. 

a. Inconsistent Local Rules 

The main problem identified by the Committee Note is that no-citation 

rules impose a “hardship[]” on attorneys by forcing them to “pick through 

 41. I will not litter this Part II with dozens of footnotes citing hundreds of comments. 

Some of the arguments that I will set forth were made by literally hundreds of commentators. 

Other arguments were not made in their entirety by anyone; I have instead patched together 

the arguments from various points made by various commentators. All of the comments are 

public documents and can be obtained from the AO or online. See supra note 2. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 31 

the conflicting no-citation rules of the circuits in which they practice.”42 

This is not much of a hardship. Every circuit has implemented numerous 

local rules, and attorneys will continue to have to “pick through” those rules 

whether or not Rule 32.1 is approved. It is not unreasonable to ask an 

attorney who seeks to practice in a circuit to read and follow that circuit’s 

local rules—local rules that are readily available from the clerk or online. 

Moreover, no-citation rules are particularly easy to follow, as they are 

generally clear and, in most circuits, they appear right on the face of 

unpublished opinions. A lawyer who reads an unpublished opinion is told 

up front exactly what use he or she may make of it. It is not surprising that 

the Advisory Committee has not identified any occasion on which an 

attorney was in fact confused about the no-citation rule of a circuit, much 

less any occasion on which an attorney was “sanctioned or accused of 

unethical conduct for improperly citing an ‘unpublished’ opinion.”43 

Attorneys have no difficulty locating, understanding, and following nocitation rules. 

Even if inconsistent local rules on citing unpublished opinions posed a 

hardship, Rule 32.1 would do little to alleviate that hardship. Most 

litigators practice in only one state and one circuit. Thus, most litigators are 

inconvenienced far more by differences between the rules of their state 

courts and the rules of their federal courts than they are by differences 

among the rules of various federal courts. The minority of attorneys who 

practice in multiple circuits tend to work for the Justice Department or for 

large law firms and thus have the time and resources to learn and follow 

each circuit’s local rules. 

Although Rule 32.1 would help the Justice Department and big firms by 

creating uniformity among federal circuits, it could harm the typical 

attorney who practices in only one state by creating disuniformity between, 

for example, the rules of the California courts (which bar the citation of 

unpublished opinions of the intermediate appellate courts44) and the rules of 

the Ninth Circuit (which, under Rule 32.1, would have to permit citation). 

Moreover, even within the federal courts, Rule 32.1 would create 

uniformity only with respect to citation. The rule would not create 

uniformity with respect to the use that circuits make of unpublished 

opinions. Thus, those who practice in multiple federal circuits would still 

have to become familiar with inconsistent rules about unpublished opinions. 

If uniformity is the Advisory Committee’s concern, it would be far better, 

for the reasons described below, to propose a rule that would uniformly bar 

the citation of unpublished opinions. 

 42. Preliminary Draft, supra note 23, at 38. 

43. Id.

44. See Cal. R. Ct. 977. 
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32 FORDHAM LAW REVIEW [Vol. 74 

b. First Amendment

The Committee Note also alludes to a potential First Amendment 

problem.45 No court has found that no-citation rules violate the First 

Amendment, and no court will. Courts impose myriad restrictions on what 

an attorney may say to a court and how an attorney may say it. A nocitation rule no more threatens First Amendment values than does a rule 

limiting the size of briefs to thirty pages.46

3. Lack of Benefits Provided by Rule 32.1 

Not only has the Advisory Committee failed to identify any problems 

that Rule 32.1 would solve, it has failed to identify any benefits that Rule 

32.1 would provide. 

a. Insight and Information

Rule 32.1 would not, as the Committee Note claims, “expand[] the 

sources of insight and information that can be brought to the attention of 

judges.”47 Unpublished opinions provide little “insight” or “information.” 

To understand why, one needs to appreciate when and how unpublished 

opinions are produced. 

Appellate courts have essentially two functions: error correction and law 

creation. With few exceptions,48 unpublished opinions are issued in the 

vast majority of cases that call on a court only to correct error. Unpublished 

opinions merely inform the parties and the lower court of why the court of 

appeals concluded that the lower court did or did not err. Unpublished 

opinions do not establish a new rule of law; expand, narrow, or clarify an 

existing rule of law; apply an existing rule of law to facts that are 

significantly different from the facts presented in published opinions; create 

or resolve a conflict in the law; or address a legal issue in which the public 

has a significant interest. As one judge wrote, “[O]ur uncitable 

memorandum dispositions do nothing more than apply settled circuit law to 

the facts and circumstances of an individual case. They do not make or 

alter or nuance the law. The principles we use to decide cases in 

memorandum dispositions are already on the books and fully citable.”49

45. See Preliminary Draft, supra note 23, at 38. 

46. See, e.g., Fed. R. App. P. 32(a)(7)(A). 

 47. Preliminary Draft, supra note 23, at 38. 

 48. Unpublished opinions are sometimes issued in cases that present important legal 

questions, but in which the court is not confident that it has answered those questions 

correctly—usually because the facts were unusual or the advocacy was poor or lopsided. In 

such circumstances, a court may not want to speak authoritatively or comprehensively about 

an issue—or foreclose a particular line of argument—when a future case may present more 

representative facts or more skilled advocacy. 

 49. Letter from Stephen S. Trott, Circuit Judge, U.S. Court of Appeals for the Ninth 

Circuit, to Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 1 (Jan. 8, 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 33 

Because an unpublished opinion functions solely as a one-time 

explanation to the parties and the lower court, judges are careful to make 

sure that the result is correct, but they spend very little time reviewing the 

opinion itself. Usually the opinion is drafted by a member of the circuit’s 

staff or by a law clerk; often, the staff member or law clerk simply converts 

a bench memo into an opinion. The opinion will generally say almost 

nothing about the facts, because its intended audience—the parties and the 

lower court—are already familiar with the facts. It is common for a panel 

to spend as little as five minutes on an unpublished opinion. The opinions 

usually do not go through multiple drafts, members of the panel usually do 

not request modifications, and the opinions usually are not circulated to the 

entire court before they are released. An unpublished opinion may 

accurately express the views of none of the members of the panel. As long 

as the result is correct, judges do not care much about the language. As one 

judge explained, “What matters is the result, not the precise language of the 

disposition or even its reasoning. [Unpublished opinions] reflect the 

panel’s agreement on the outcome of the case, nothing more.”50

Because of these features, citing unpublished opinions will not only 

provide little insight or information, but will actually result in judges being 

misled. A court’s holding cannot be understood outside of the factual 

context, but unpublished opinions say little or nothing about the facts 

(because they are written for those already familiar with the case). Thus, it 

is difficult to discern what an unpublished opinion actually held, and easy 

for judges and parties to be misled. In addition, because unpublished 

opinions are hurriedly drafted by staff and clerks, and because they receive 

little attention from judges, they often contain statements of law that are 

imprecise or inaccurate. Even slight variations in the way that a legal 

principle is stated can have significant consequences. If unpublished 

opinions could be cited, courts would often be led to believe that the law 

had been changed in some way by an unpublished opinion, when no such 

change was intended. And finally, unpublished opinions are a poor source 

of information about a particular judge’s views on a legal issue. As noted, 

it is possible that an unpublished opinion of a panel does not accurately 

express the views of any judge on that panel. Citing unpublished opinions 

might mislead lower courts and others about the personal views of a judge. 

Even assuming that there are cases in which citing an unpublished 

opinion would be valuable—cases in which an unpublished opinion might 

be persuasive “by virtue of the thoroughness of its research or the 

persuasiveness of its reasoning”51—Rule 32.1 is not needed. Any party can 

2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-129.pdf 

(Comment 03-AP-129). 

 50. Letter from Barry G. Silverman, Circuit Judge, U.S. Court of Appeals for the Ninth 

Circuit, to Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 1 (Dec. 17, 

2003), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-075.pdf 

(Comment 03-AP-075). 

 51. Preliminary Draft, supra note 23, at 34. 
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34 FORDHAM LAW REVIEW [Vol. 74 

petition a court of appeals to publish an opinion that has been designated as 

unpublished. Courts recognize that they sometimes err in designating 

opinions as unpublished and are quite willing to correct those mistakes 

when those mistakes are brought to their attention. More importantly, 

nothing prevents any party in any case from borrowing—word-for-word, if 

the party wishes—the research and reasoning of an unpublished opinion. 

The fact is, though, that parties want to cite unpublished opinions not 

because they are inherently persuasive, but because parties want to argue 

(explicitly or implicitly) that a panel of the circuit agreed with a particular 

argument—and for that reason, and not because of the opinion’s research or 

reasoning, the circuit should agree with the argument again. As one judge 

commented, 

[N]othing prevents a party from copying wholesale the thorough research 

or persuasive reasoning of an unpublished disposition—without citation. 

But that’s not what the party seeking to actually cite the disposition wants 

to do at all; rather, it wants the added boost of claiming that three court of 

appeals judges endorse that reasoning.

52

This, however, is a dishonest and misleading use of unpublished 

opinions. As described above, judges often sign off on unpublished 

opinions that do not accurately express their views; indeed, it will be the 

rare unpublished opinion that will precisely and comprehensively describe 

the views of any of the panel’s judges. In short, no-citation rules merely 

prevent parties from using unpublished opinions illegitimately—to mislead 

a court. All legitimate uses of unpublished opinions—such as mining them 

for nuggets of research or reasoning—are already available to parties. 

b. Transparency

Rule 32.1 would not, as the Committee Note claims, “mak[e] the entire 

process more transparent to attorneys, parties, and the general public.”53 As 

the Committee Note itself describes, unpublished opinions are already 

widely available and widely read by judges, attorneys, parties, and the 

general public—and sometimes reviewed by the Supreme Court. Those 

opinions can be requested from the clerk, reviewed on the websites of the 

circuits and other free Internet sites, and researched with Westlaw and 

LEXIS. Unpublished opinions are no less transparent than published 

opinions. They are not hidden from anyone. 

Proponents of Rule 32.1 often cite suspicions that courts use unpublished 

opinions to duck difficult issues or to hide decisions that are contrary to 

law, but there is no evidence that these suspicions are valid. Even those 

(very few) judges who have expressed support for Rule 32.1 have cited only 

 52. Letter from Alex Kozinski, Circuit Judge, U.S. Court of Appeals for the Ninth 

Circuit, to Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules 4 (Jan. 16, 

2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-169.pdf 

[hereinafter Kozinski Letter] (Comment 03-AP-169). 

 53. Preliminary Draft, supra note 23, at 38. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 35 

the perception that unpublished opinions are used improperly; they agree 

that the perception is not accurate. Since the Ninth Circuit changed its nocitation rule to allow parties to bring to the court’s attention in a rehearing 

petition any unpublished opinions that were in conflict with the decision of 

the panel,54 almost no party has been able to do so. Every judge makes 

mistakes, but there is no evidence that judges are intentionally and 

systematically using unpublished opinions for improper purposes. 

4. Costs Imposed by Rule 32.1 

Although Rule 32.1 would not address any real problem with the status 

quo—and although Rule 32.1 would not result in any real benefit—Rule 

32.1 would inflict enormous costs on judges, attorneys, and parties, and 

perhaps even on state courts. 

a. Federal Judges

The judges of many circuits are now overwhelmed. The number of 

appeals filed has increased dramatically faster than the number of 

authorized judgeships, and Congress has been slow to fill judicial 

vacancies. Judges and their staffs are already stretched to the limit; there is 

no margin for error when it comes to imposing new responsibilities on 

them. 

Drafting published opinions takes a lot of time. Because judges know 

that such opinions will bind future panels and lower courts—and because 

judges know that those opinions will be widely cited as reflecting the views 

of the judges who write or join them—published opinions are drafted with 

painstaking care. A published opinion provides extensive information 

about the facts and the procedural background, because it is written for 

strangers to the case, and because those strangers will not be able to identify 

its precise holding without such information. The author of a published 

opinion will devote dozens (sometimes hundreds) of hours to writing, 

editing, and polishing multiple drafts. Although law clerks may help with 

the research or produce a first draft, the authoring judge will invest a great 

deal of his or her own time in drafting the opinion. The final draft will be 

reviewed carefully by the other members of the panel, who will often 

request revisions. Before the opinion is released, it will be circulated to all 

of the members of the court, and other judges will sometimes request 

changes. 

By contrast, as described above, unpublished opinions generally take 

very little time. They are written quickly by court staff or law clerks, and 

judges give them only cursory attention—precisely because judges know 

that the opinions need to function only as explanations to those involved in 

the cases and will not be cited to future panels or to lower courts within the 

circuit. 

54. See 9th Cir. R. 36-3(b)(iii). 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

36 FORDHAM LAW REVIEW [Vol. 74 

Rule 32.1 will force judges to spend as much time drafting unpublished 

opinions as they now spend drafting published opinions. Judges will also 

take the time to write concurring and dissenting opinions, to prevent courts 

from misunderstanding their personal views. The Advisory Committee 

cannot: (i) change the audience for unpublished opinions (from the parties, 

their attorneys, and the lower court under the current system to future 

panels, district courts within the circuit, and the rest of the world under Rule 

32.1); and (ii) change the purpose of unpublished opinions (from giving a 

brief, one-time explanation to those already familiar with the case under the 

current system to being used forever to persuade courts to rule a particular 

way under Rule 32.1); and not (iii) change the nature of unpublished 

opinions. As one group of judges commented, “[the] efficiency [of 

unpublished opinions] is made possible only when the authoring judge has 

confidence that shorthand statements, clearly understood by the parties, will 

not later be scrutinized for their legal significance by a panel not privy to 

the specifics of the case at hand.”55

Because judges will spend much more time writing unpublished opinions 

if Rule 32.1 is approved, at least two consequences will follow. First, 

judges will have less time available to devote to published decisions—the 

decisions that really matter. The quality of published opinions will suffer. 

The law will be less clear. Apparent inconsistencies will abound. 

Inadvertent intra- and inter-circuit conflicts will arise more frequently. All 

of this will result in more litigation, more appeals, and more en banc 

proceedings, which will result in even more demands on judges, which will 

give them even less time to devote to writing published opinions. Second, 

parties will have to wait much longer to get unpublished decisions. Parties 

now often get an unpublished decision in a few days; under Rule 32.1, they 

may have to wait for a year or more, because judges will be putting much 

more effort into them, and because judges generally will be busier. 

Although Rule 32.1 will reduce the time that judges have available to 

spend on opinions, it will increase the amount of attention that drafting 

opinions will require. Parties will cite more cases to the courts, meaning 

that conscientious judges and their law clerks will have more opinions to 

read, explain, and distinguish in the course of writing opinions. As one 

judge wrote, “Once brought to the court’s attention . . . there is no way 

simply to ignore our memorandum dispositions.”56 This will be a timeconsuming process, because to fully understand an unpublished opinion—

which, as described above, will usually say little about the facts—the judge 

or the law clerk will have to go back and read the briefs and record in the 

 55. Letter from John M. Walker, Jr., Chief Judge, U.S. Court of Appeals for the Second 

Circuit, to Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 7 (Feb. 11, 

2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-329.pdf 

[hereinafter Walker Letter] (Comment 03-AP-329). 

 56. Letter from Diarmuid F. O’Scannlain, Circuit Judge, U.S. Court of Appeals for the 

Ninth Circuit, to Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 3 (Feb. 

5, 2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-285.pdf 

(Comment 03-AP-285). 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 37 

case. The result will be that parties—who now often wait a year or more to 

get a published decision—will have to wait even longer. 

Of course, Rule 32.1 cannot change the fact that there are only twentyfour hours in a day. Judges are already stretched to the limit. If they have 

to spend more time on both published and unpublished opinions, they will 

have to compensate in some way. One way that judges will compensate is 

by issuing no opinion in an increasing number of cases—i.e., by disposing 

of an increasing number of cases with one-line judgment orders. This will 

be harmful, for a number of reasons. 

First, one-line dispositions are unfair to the parties, who are entitled to 

some explanation of why they won or lost an appeal, as well as to some 

assurance that their arguments were read, understood, and taken seriously. 

Parties who are not told why they won or lost an appeal—and who are not 

provided with any evidence that their arguments were even read—will lose 

confidence in the judicial system. Second, one-line dispositions are unfair 

to lower-court judges, who are entitled to know why they have been 

affirmed or reversed. Lower-court judges cannot correct their mistakes 

unless those mistakes are made known to them. Third, one-line dispositions 

deprive parties of a meaningful chance to petition for en banc 

reconsideration by the circuit or certiorari from the Supreme Court. 

Without any explanation of the panel’s decision, it is almost impossible for 

the en banc court or the Supreme Court to know if a case is worth further 

review. Finally, when judges issue an unpublished opinion, they have to 

discuss the basic rationale for the disposition. That provides at least some 

discipline. That discipline is lacking when a panel issues a one-line 

disposition. 

b. Attorneys

Attorneys who oppose no-citation rules represent only a small fraction of 

the bar—although, because they are very vocal, they have created the 

illusion that there is widespread dissatisfaction with such rules. In fact, 

most lawyers support no-citation rules, and for good reason. 

Abolishing no-citation rules would vastly increase the body of case law 

that would have to be researched. If unpublished opinions can be cited, 

then they might influence the court; and if unpublished opinions might 

influence the court, then an attorney must research them. As one oftrepeated “talking point” put it, “As a matter of prudence, and probably 

professional ethics, practitioners could not ignore relevant opinions decided 

by the very circuit court before which they are now litigating.”57 Even an 

attorney who understands that unpublished opinions are largely useless and 

who does not want to waste time researching them will have to prepare for 

the possibility that his or her opponent will use them. One way or another, 

attorneys will have to read unpublished opinions. 

 57. Liebeler Letter, supra note 4, app. at 1. 
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38 FORDHAM LAW REVIEW [Vol. 74 

An attorney will be faced with a difficult dilemma when he or she runs 

across an unpublished opinion that is contrary to his or her position. Even 

if unpublished opinions are formally treated as non-binding, 

the advocate is faced with the Hobson’s choice of either using up precious 

pages in her brief distinguishing the unpublished decisions, or running the 

uncertain risk of condemnation from her opponent (or worse, the court) 

for ignoring those decisions. 

 In other words, even if it were possible to maintain some sort of formal

distinction between permissively citable unpublished decisions and 

mandatory, precedential published opinions, the substance of the 

distinction would quickly erode.58

The hardship imposed on attorneys is not just a function of the dramatic 

increase in the number of opinions that they will have to read; it is also a 

function of the nature of those opinions. Because unpublished opinions say 

so little about the facts, attorneys will struggle to understand them. 

Attorneys will often have to retrieve the briefs or records of old cases to be 

certain that they understand what unpublished opinions held. 

Attorneys already find it almost impossible to keep current on the law—

even the law in one or two specialities. So many courts are publishing so 

many opinions—and there are so many ambiguities and inconsistencies in 

those opinions—that it is often very difficult for a conscientious attorney to 

know what the law “is” on a particular question. Rule 32.1 will compound 

this problem many times over, not only because the number of opinions that 

“matter” will multiply, but because the unpublished opinions that will have 

to be consulted are “a particularly watery form of precedent.”59 Because so 

little time goes into writing them, unpublished opinions will introduce into 

the corpus of the law thousands of ambiguous, imprecise, and misleading 

statements that will be represented as the “holdings” of circuits. It will be 

harder than ever for attorneys to keep up with the law. 

Litigators are not the only attorneys who will be burdened by Rule 32.1. 

Transactional attorneys and others who counsel clients about how to 

structure their affairs will have more opinions to read and, because more 

law means more uncertainty, will have difficulty advising their clients about 

the legal implications of their conduct. This problem will be particularly 

acute for attorneys who must advise large corporations and other 

organizations that operate in multiple jurisdictions. 

While all attorneys—litigators and non-litigators—will be harmed by 

Rule 32.1, some will be harmed more than others. Unpublished opinions 

are not as readily available as published opinions. Not all libraries and 

legal offices can afford to purchase West’s Federal Appendix and rent space 

to store it. And not all lawyers can afford to use Westlaw or LEXIS. 

 58. Letter from Robert G. Badal et al., to Peter G. McCabe, Sec’y, Comm. on Rules of 

Practice & Procedure 4 (Feb. 12, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-462.pdf (Comment 03-AP-462). 

 59. Kozinski Letter, supra note 52, at 13. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 39 

(Indeed, not all attorneys have access to computers.) The E-Government 

Act60 (which requires circuits to make all of their decisions—published and 

unpublished—available on their websites) will help, but it will not level the 

playing field entirely. For example, the Act does not require circuits to 

provide electronic access to their old unpublished decisions, and it is 

unlikely that researching unpublished opinions on circuit websites will be 

as easy as researching those opinions on Westlaw or LEXIS. 

Even if the day arrives when unpublished opinions become equally 

available to all, attorneys will still have to read them. Some attorneys are 

already overwhelmed with work or have clients who cannot pay for more of 

their time. These attorneys—including solo practitioners, small-firm 

lawyers, public defenders, and counsel appointed under the Criminal Justice 

Act of 196461—will bear the brunt of Rule 32.1. Rule 32.1 will thus 

increase the already substantial advantage enjoyed by large firms, 

government attorneys, and in-house counsel at large corporations. 

c. Parties

If Rule 32.1 is approved, all parties in all cases—both cases that 

terminate in published opinions and cases that terminate in unpublished 

opinions—will have to wait longer for their cases to be resolved, for the 

reasons described above. Delays are bad for everyone, but they are 

particularly harmful to the most vulnerable litigants—such as plaintiffs in 

personal injury cases who can no longer pay their medical bills or habeas 

petitioners who are unlawfully incarcerated. 

As described above, Rule 32.1 will result in more one-line dispositions. 

More parties will never be given an explanation for why they lost their 

appeal or even assurance that their arguments were taken seriously. This 

will result in less transparency and less confidence in the judicial system. 

Rule 32.1 will increase the already high cost of litigation, for reasons 

described above. Clients will have to pay more attorneys to read more 

cases. Increasing the cost of litigation will, of course, harm the poor and 

middle class the most, adding to the already considerable advantages 

enjoyed by the powerful and the wealthy. Rule 32.1 will particularly 

disadvantage pro se litigants and prisoners, who often do not have access to 

the Internet or to the Federal Appendix. 

d. State Courts

Rule 32.1 could harm state courts. For example, the rule would permit 

litigants to cite, and federal courts to rely on, the unpublished opinions of 

the California state courts in diversity and other actions, even though the 

California courts themselves have determined that these cases should not be 

looked to for expositions of state law. This, in turn, will enable litigants to 

 60. E-Government Act of 2002, 44 U.S.C.A. § 3501 (2004). 

 61. 18 U.S.C. § 3006A (2000). 
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40 FORDHAM LAW REVIEW [Vol. 74 

use the unpublished decisions of the California state courts to influence the 

development of California law, through the “back door” of the federal 

courts. Thus, many of the costs imposed by Rule 32.1 on federal courts—

such as the need for judges to spend more time writing unpublished 

opinions—will also be imposed on state courts. 

e. De Facto Precedent

The Committee Note admits that Rule 32.1 would inflict the costs 

described above if it required courts to treat their unpublished opinions as 

binding precedent, but then gives assurance that Rule 32.1 does not do so.62 

The Advisory Committee is naive in believing that a clear distinction 

between “precedential” and “non-precedential” will be maintained. 

As noted, parties will be citing unpublished opinions precisely for their 

precedential value—that is, as part of an argument (implicit or explicit) that, 

because a panel of a circuit decided an issue one way in the past, another 

panel of the circuit should decide the issue the same way now. When 

circuits are confronted with this argument, they will not be able to say that 

the prior unpublished opinion is not binding precedent and therefore can be 

ignored. Rather, the court will have to distinguish it or explain why it will 

not be followed. As one group of judges commented, “As a practical 

matter, we expect that [unpublished opinions] will be accorded significant 

precedential effect, simply because the judges of a court will be naturally 

reluctant to repudiate or ignore previous decisions.”63

From the point of view of the court’s workload, then, the Committee 

Note’s assurance that courts will not have to treat their unpublished 

opinions as binding precedent will make little difference. This phenomenon 

will be even more apparent in the lower courts. It will be a rare district 

court judge who will ignore an unpublished opinion of the circuit that will 

review his or her decision. If unpublished opinions are cited to lower 

courts, lower courts will have to treat them as though they were binding, 

even if that is not technically true. In sum, all of the consequences 

described above—such as courts having to spend more time writing 

unpublished opinions and attorneys having to spend more time researching 

them—will occur, whether or not the unpublished opinions are labeled 

“non-binding.” 

5. Other Non-binding Authority 

The Committee Note argues that there is no compelling reason to treat 

unpublished opinions differently from other non-binding sources of 

authority, such as “the opinions of federal district courts, state courts, and 

62. See Preliminary Draft, supra note 23, at 36. 

 63. Letter from John L. Coffey et al., Circuit Judges, U.S. Court of Appeals for the 

Seventh Circuit, to Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules 1 (Feb. 

11, 2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-396.pdf 

[hereinafter Coffey Letter] (Comment 03-AP-396). 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 41 

foreign jurisdictions, law review articles, treatises, newspaper columns, 

Shakespearian sonnets, and advertising jingles.”64 This argument overlooks 

important distinctions. 

First, the fact that law review articles or newspaper columns can be cited 

in a brief will not have any effect on the author of such materials. The 

author of a law review article or a newspaper column is going to do 

precisely the same amount of work—and write precisely the same words—

whether or not his or her work can later be cited to a court. By contrast, 

making the unpublished opinions of a court of appeals citable will affect 

their authors, as described above. 

Second, there is no chance that law review articles or newspaper columns 

will be cited by parties for their precedential value—that is, as part of an 

argument that, because a circuit did x once, it should do x again. Law 

review articles, newspaper columns, and the like are cited only for their 

persuasive value because that is the only value they have. An unpublished 

opinion, by contrast, is cited by a party who wants a circuit (or a lower 

court within the circuit) to decide an issue a particular way—not because 

the unpublished opinion, like a law review article, is powerfully persuasive, 

but because the unpublished opinion, unlike the law review article, was at 

least nominally issued in the name of the circuit. 

The same point can be made about the opinions of other circuits, lower 

federal courts, state courts, or foreign jurisdictions. As one commentator 

wrote, 

When the opinions, even the unpublished ones, of another court are cited, 

the underlying argument is as follows: the other court accepted or 

advanced a particular reasoning and, therefore, this court should too—it 

can, and should, trust the other court’s judgment. When an unpublished 

opinion of the same court is cited, however, the underlying argument is 

invariably a precedential one, in the most basic sense: this court accepted 

or advanced a particular reasoning in another case and, therefore, it would 

be fundamentally unfair not to apply that same rationale in the instant 

case. Such opinions are cited for their precedential value.65

Finally, there is no chance that a lower court will feel bound to adhere to 

the views of the author of a law review article or newspaper column. As 

one judge wrote, “Shakespearian sonnets, advertising jingles and newspaper 

columns are not, and cannot be mistaken for, expressions of the law of the 

circuit. Thus, there is no risk that they will be given weight far 

disproportionate to their intrinsic value.”66 Or, as one bar committee wrote, 

“unlike unpublished decisions, there is no risk these other materials will be 

 64. Preliminary Draft, supra note 23, at 35. 

 65. Letter from Lee A. Casey, Baker & Hostetler LLP, to Peter G. McCabe, Sec’y, 

Comm. on Rules of Practice & Procedure 2 (Feb. 12, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-478.pdf (Comment 03-AP-478). 

 66. Kozinski Letter, supra note 52, at 2. 
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42 FORDHAM LAW REVIEW [Vol. 74 

mistaken for the law of the circuit or given undue weight by the lower 

courts or litigants.”67

The risk that unpublished opinions will be given undue weight is 

particularly acute in the lower courts, which is why some no-citation rules 

apply to those courts, as well as to parties. 

The word of a federal Court of Appeals will not be treated as a law review 

article or newspaper column, no matter how many admonitions from the 

appellate court that its unpublished opinions have no precedential 

authority. Every judge and lawyer in America has internalized the 

hierarchical nature of our justice system; the word of a federal Court of 

Appeals, even unpublished, will not be treated the same as the word of a 

legal scholar or newspaper columnist.68

6. Experience of Permissive Courts 

The Committee Note is wrong in suggesting that, because some circuits 

have liberalized no-citation rules without experiencing problems, the 

concerns about Rule 32.1 are overblown.69 The conditions of each circuit 

vary significantly, making it hazardous to assume that the experience of one 

circuit will be duplicated in another. As noted above, circuits vary with 

respect to such things as the size, subject matter, and complexity of the 

caseload; the number of judges; and the local legal culture. Just because the 

Fifth Circuit is able to permit the citation of unpublished opinions does not 

mean that the Ninth Circuit can do so. 

In addition, almost no circuit has gone as far as Rule 32.1 in permitting 

the citation of unpublished opinions. All circuits (except the Fifth) 

discourage such citation in some way, forbid it in some circumstances, or 

both. And three circuits with liberal citation rules—the Third, Fifth, and 

Eleventh—have only recently made their unpublished opinions widely 

available. It is virtually costless for a circuit whose unpublished opinions 

do not appear in the Federal Appendix or in the Westlaw and LEXIS 

databases to allow those opinions to be cited. 

Two other facts should be noted. First, some circuits that have 

liberalized no-citation rules have done so only recently, so it is too early to 

know whether they will experience difficulties. Second, some of the 

circuits that permit liberal citation of unpublished opinions also make 

frequent use of one-line dispositions. This supports—rather than refutes—

the arguments of those who oppose Rule 32.1. 

 67. E-mail from John A. Taylor, Jr., Chair, Comm. on Appellate Courts, State Bar of 

Ca., to Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 2 (Feb. 10, 2004), 

available at http://www.secretjustice.org/pdf_files/Comments/03-AP-319.pdf (Comment 03-

AP-319). 

 68. Letter from E. Vaughn Dunnigan to Peter G. McCabe, Sec’y, Comm. on Rules of 

Practice & Procedure 1 (Feb. 8, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-322.pdf (Comment 03-AP-322). 

69. See Preliminary Draft, supra note 23, at 37. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 43 

7. Rules Enabling Act Authority 

The Advisory Committee does not have the authority to force circuits to 

permit citation of unpublished opinions. Rule 32.1 is not a “general rule[] 

of practice and procedure”70 because, if the rule is adopted, “some judges 

will make the opinion more elaborate in order to make clear the context of 

the ruling, while other judges will shorten the opinion in order to provide 

less citable material.”71 Because Rule 32.1 would “affect the construction 

and import of opinions,” the rule is “beyond the scope of the rulemaking 

authority of 28 U.S.C. § 2072.”72

B. Arguments for Rule 32.1

1. Civic Values 

It is not Rule 32.1, but no-citation rules, that require a compelling 

justification. In a democracy, the presumption is that citizens may discuss 

with the government the actions that the government has taken. Under the 

First Amendment, the presumption is that prior restraints on speech—

especially speech about the government made to the government—are 

invalid. In a common-law system, the presumption is that judicial decisions 

are citable. In an adversary system, the presumption is that lawyers are free 

to make the best arguments available. No-citation rules—through which 

judges instruct litigants, “You may not even mention what we’ve done in 

the past, much less engage us in a discussion about whether what we’ve 

done in the past should influence what we do in this case”—are profoundly 

antithetical to American values. The burden should not be on the Advisory 

Committee to defend Rule 32.1 but on opponents of Rule 32.1 to defend nocitation rules. 

2. Insight and Information 

The main problem created by no-citation rules—a problem that Rule 32.1 

would eliminate—is that no-citation rules deprive the courts, attorneys, and 

parties of the use of unpublished opinions. The evidence is overwhelming 

that unpublished opinions are indeed a valuable source of “insight and 

information.”73

First, unpublished opinions are often read. “[L]awyers, district court 

judges, and appellate judges regularly read and rely on unpublished 

decisions despite prohibitions on doing so.”74 Numerous commentators—

 70. 28 U.S.C. § 2072(a) (2000). 

 71. Walker Letter, supra note 55, at 5. 

72. Id.

 73. Preliminary Draft, supra note 23, at 38. 

 74. E-mail from Richard Frankel, Trial Lawyers for Pub. Justice, to Peter G. McCabe, 

Sec’y, Comm. on Rules of Practice & Procedure, app. at 4 (Feb. 14, 2004), available at
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44 FORDHAM LAW REVIEW [Vol. 74 

supporters and opponents of Rule 32.1 alike—said that they regularly read 

unpublished opinions. 

Second, unpublished opinions are often cited by attorneys. One 

commentator wrote the following: 

My own experience has been that the prohibition on [citation] currently in 

effect in the lower courts of the Ninth Circuit is utterly disregarded, not 

just by bad lawyers but also by good ones—even by leading lawyers, not 

always, to be sure, but in many cases when there is no binding, published 

authority available.”75

Third, unpublished decisions are often cited by judges. Researchers have 

identified hundreds of citations to unpublished opinions by appellate courts 

and district courts—including appellate courts and district courts in 

jurisdictions that have adopted no-citation rules. One of the most pointed of 

those citations appears in Harris v. United Federation of Teachers: 

There is apparently no published Second Circuit authority directly on 

point for the proposition that § 301 does not confer jurisdiction over fair 

representation suits against public employee unions. In the “unpublished” 

opinion in Corredor, which of course is published to the world on both 

the Lexis and Westlaw services, the Court expressly decides the 

point . . . . Yet the Second Circuit continues to adhere to its 

technological[ly]-outdated rule prohibiting parties from citing such 

decisions . . . thus pretending that this decision never happened and that it 

remains free to decide an identical case in the opposite manner because it 

remains unbound by this precedent. This Court nevertheless finds the 

opinion of a distinguished Second Circuit panel highly persuasive, at least 

as worthy of citation as law review student notes, and eminently 

predictive of how the Court would in fact decide a future case such as this 

one.76

Fourth, there are some areas of the law in which unpublished opinions 

are particularly valuable. One appellate judge, after describing a recent 

occasion on which a staff attorney had cited many unpublished decisions in 

advising a panel of judges about how to dispose of a case, commented as 

follows: 

 Judges rely on this material for one reason; it is helpful. For instance, 

unpublished orders often address recurring issues of adjective law rarely 

covered in published opinions. . . . We have all encountered the situation 

in which there is no precedent in our own circuit, but research reveals that 

colleagues in other circuits have written on the issue, albeit in an 

unpublished order. I see no reason why we ought not be allowed to 

http://www.secretjustice.org/pdf_files/Comments/03-AP-406.pdf [hereinafter Frankel Letter] 

(Comment 03-AP-406). 

 75. Letter from Leslie R. Weatherhead, Witherspoon, Kelley, Davenport & Toole, to 

Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 3 (Feb. 11, 2004), 

available at http://www.secretjustice.org/pdf_files/Comments/03-AP-473.pdf (Comment 03-

AP-473). 

 76. Harris v. United Fed’n of Teachers, No. 02-Civ. 3257, 2002 WL 1880391, at *1 n.2 

(S.D.N.Y. Aug. 14, 2002). 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 45 

consider such material, and I certainly do not understand why counsel, 

obligated to present the best possible case for his client, should be denied 

the right to comment on legal material in the public domain.77

Fifth, unpublished opinions can be particularly helpful to district court 

judges, who so often must exercise discretion in applying relatively settled 

law to an infinite variety of facts. For example, district courts are instructed 

to strive for uniformity in sentencing, and thus they are often anxious for 

any evidence about how similarly situated defendants are being treated by 

other judges. Many unpublished opinions provide this information. The 

value of unpublished opinions to district court judges may explain why only 

four of the 1000-plus active and senior district judges in the United States—

including only two of the 150-plus district judges in the Ninth Circuit—

submitted comments opposing Rule 32.1.78

Sixth, there is not already “too much law,” as some opponents of Rule 

32.1 claim. Judge Richard A. Posner (ironically, an opponent of Rule 

32.179) has written, “Despite the vast number of published opinions, most 

federal circuit judges will confess that a surprising fraction of federal 

appeals, at least in civil cases, are difficult to decide not because there are 

too many precedents but because there are too few on point.”80 Attorneys 

are most likely to cite—and judges are most likely to consult—an 

unpublished opinion not because it contains a sweeping statement of law (a 

statement that can be found in countless published opinions), but because 

the facts of the case are very similar to the facts of the case before the court. 

Parties should be able to bring such factually similar cases to a court’s 

attention, and courts should be able to consult them for what they are worth. 

For all of these reasons, no-citation rules should be abolished. When 

attorneys can and do read unpublished opinions—and when judges can and 

do get influenced by unpublished opinions—it makes no sense to prohibit 

attorneys and judges from talking about the opinions that both are reading. 

3. Legal Significance 

In addition to the evidence that unpublished opinions do indeed often 

serve as sources of insight and information for both attorneys and judges, 

there are other reasons to doubt the oft-repeated claim that unpublished 

opinions merely apply settled law to routine facts and therefore have no 

precedential value. 

To begin with, it is difficult for a court to predict whether a case will 

have precedential value. 

 77. Letter from Kenneth F. Ripple, Circuit Judge, U.S. Court of Appeals for the Seventh 

Circuit, to Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules 1-2 (Feb. 12, 

2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-335.pdf 

[hereinafter Ripple Letter] (Comment 03-AP-335). 

78. See May 2004 Report, supra note 13, at 97. 

79. See Coffey Letter, supra note 63, at 3. 

 80. Richard A. Posner, The Federal Courts: Challenge and Reform 166 (1996). 
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46 FORDHAM LAW REVIEW [Vol. 74 

Only when a case comes along with arguably comparable facts does the 

precedential relevance of an earlier decision-with-opinion arise. This 

point naturally leads one to question how an appellate panel can, ex ante, 

determine the precedential significance of its ruling. Lacking 

omniscience, an appellate panel cannot predict what may come before its 

court in future days.81

As one attorney commented, 

[W]e can and do expect a lot from our judges, but the assumption that any 

court can know, at the time of issuing a decision, that the decision neither 

adds (whatsoever) to already existing case law and that it could never

contribute (in any way) to future development of the law, strikes even me 

as hero-worship taken beyond the cusp of reality.82

In addition, even if a court could reliably predict whether an opinion 

establishes a precedent worth being cited, making that decision would itself 

take a lot of time. “The very choice of treating an appealed case as nonprecedential, if done conscientiously, has to be preceded by thoughtful 

analysis of the relevant precedents.”83 Time, of course, is precisely what 

courts who issue unpublished opinions say they do not have. 

Given these limitations, it is not surprising that courts often designate as 

“unpublished” decisions that should be citable. The most famous example 

involves the Fourth Circuit’s declaring an act of Congress unconstitutional 

in an unpublished opinion84—something that the Supreme Court, on 

review, labeled “remarkable and unusual.”85 Other examples abound. For 

example, in United States v. Rivera-Sanchez,

86 the Ninth Circuit described 

how twenty inconsistent unpublished opinions on the same unresolved and 

difficult question of law had been issued by Ninth Circuit panels before a 

citable decision settled the issue. 

More evidence of the unreliability of these designations can be found in 

the many unpublished decisions that have been reviewed by the Supreme 

Court.87 The fact that the Supreme Court decides to review a case does not 

 81. Richard B. Cappalli, The Common Law’s Case Against Non-Precedential Opinions, 

76 S. Cal. L. Rev. 755, 773 (2003) (attached to Letter from Richard B. Cappalli, Professor of 

Law, The James E. Beasley Sch. of Law, Temple Univ., to Advisory Comm. on Appellate 

Rules (Feb. 4, 2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP435.pdf) (Comment 03-AP-435). 

 82. Letter from Michael N. Loebl, Fulcher, Hagler, Reed, Hanks & Harper, LLP, to 

Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules 4 (Feb. 16, 2004), 

available at http://www.secretjustice.org/pdf_files/Comments/03-AP-454.pdf (Comment 03-

AP-454). 

 83. Cappalli, supra note 81, at 768. 

84. See Edge Broad. Co. v. United States, No. 90-2668, 1992 WL 35795 (4th Cir. Feb. 

27, 1992), rev’d, 509 U.S. 419 (1993). 

 85. United States v. Edge Broad. Co., 509 U.S. 418, 425 n.3 (1993). 

 86. 222 F.3d 1057, 1062-63 (9th Cir. 2000). 

 87. A recent example is Muhammad v. Close, 540 U.S. 749 (2004), in which the 

Supreme Court reversed an unpublished decision that “was flawed as a matter of fact”—

suggesting that the facts were neither clear nor straightforward—“and as a matter of law”—
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 47 

necessarily mean that the circuit made a mistake in designating the opinion 

as unpublished, but the fact that an opinion was deemed “certworthy” by 

the Supreme Court does suggest that something worthy of being cited may 

have occurred in that opinion. Finally, it must be remembered that many 

unpublished opinions reverse the decisions of district courts or are 

accompanied by concurrences or dissents—implying that their results may 

not be clear or uncontroversial. 

Interestingly, researchers who have studied unpublished opinions have 

found that the decision to designate an opinion as unpublished is influenced 

by factors other than the novelty or complexity of the issues.88 For 

example, the background of judges plays a role. The more experience that a 

judge has had with an area of law in practice, the less likely the judge is to 

publish opinions in that area89 (which, ironically, means that citable 

opinions in that area will disproportionately be published by the judges who 

know the least about it). 

4. Removing “Market” Constraints 

Even if, despite all of this evidence, it remains unclear whether 

unpublished opinions offer much of value, Rule 32.1 has a major advantage 

over no-citation rules: It lets the “market” determine the value of 

unpublished opinions. A glaring inconsistency runs through the arguments 

of the opponents of Rule 32.1. On the one hand, they argue that 

unpublished opinions contain nothing of value—that such opinions are 

useless, fact-free, poorly-worded, hastily-converted bench memos written 

by twenty-six-year-old law clerks. On the other hand, they argue that, if 

Rule 32.1 is approved, attorneys will be devoting thousands of hours to 

researching these worthless opinions, briefs will be crammed with citations 

to these worthless opinions, district courts will feel compelled to follow 

these worthless opinions, and circuit judges will have no alternative but to 

carefully analyze and distinguish these worthless opinions. Opponents of 

Rule 32.1 cannot have it both ways. Either (a) unpublished opinions 

contain something of value, in which case parties should be able to cite 

them, or (b) unpublished opinions contain nothing of value, in which case 

parties will not cite them. 

Under no-citation rules, judges make this decision; they decide ex ante 

whether an opinion is so worthless that it should not be published (or cited). 

If they are wrong in their assessment, the “market” cannot correct them 

because there is no “market.” Citation is banned. Under Rule 32.1, the 

“market” makes this decision. Citation is not banned. Unpublished 

because the opinion took what the Supreme Court regarded as the wrong side of a circuit 

split. Id. at 754. 

88. See Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts 

Publication in the United States Courts of Appeals, 54 Vand. L. Rev. 71 (2001); Donald R. 

Songer, Criteria for Publication of Opinions in the U.S. Courts of Appeals: Formal Rules 

Versus Empirical Reality, 73 Judicature 307 (1990). 

89. See Merritt & Brudney, supra note 88, at 95-96. 
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48 FORDHAM LAW REVIEW [Vol. 74 

opinions will be cited if they are valuable, and they will not be cited if they 

are not valuable. 

5. Costs Imposed by No-Citation Rules 

No-citation rules create several other problems—problems that Rule 32.1 

would eliminate. 

a. Arbitrariness and Injustice 

No-citation rules lead to arbitrariness and injustice. Our common-law 

system is founded on the notion that like cases should be decided in a like 

manner. It helps no one—not judges, not attorneys, not parties—when 

attorneys are forbidden even to tell a court how it decided a similar case in 

the past. Such a practice can only increase the chances that like cases will 

not be treated alike. 

b. Lack of Accountability 

No-citation rules undermine accountability. It is striking that judges 

opposing Rule 32.1 have argued, in essence, “If parties could tell us what 

we’ve done, we’d feel morally obliged to justify ourselves. Therefore, we 

are going to forbid parties from telling us what we’ve done.” Put 

differently, judges opposing Rule 32.1 have insisted on the right to decide 

“x” in one case and “not x” in another case without being asked to reconcile 

the seemingly inconsistent decisions. Judges always have the right to 

explain or distinguish their past decisions or to honestly and openly change 

their minds. But judges should not have the right to forbid parties from 

even mentioning their past decisions. As one judge wrote, “Public 

accountability requires that we not be immune from criticism; allowing the 

bar to render that criticism in their submissions to us is one of the most 

effective ways to ensure that we give each case the attention that it 

deserves.”90

c. Lack of Transparency 

No-citation rules undermine confidence in the judicial system. Nocitation rules make absolutely no sense to non-lawyers. It is almost 

impossible to explain to a client why a court will not allow his or her lawyer 

to mention that the court has addressed the same issue in the past—or 

applied the same law to a similar set of facts. Clients just don’t “get it.” 

And, because no-citation rules are so difficult for the average citizen to 

understand, they create the appearance that courts have something to hide—

that unpublished opinions are being used for improper purposes. As one 

judge wrote, 

 90. Ripple Letter, supra note 77, at 2. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 49 

It is hard for courts to insist that lawyers pretend that a large body of 

decisions, readily indexed and searched, does not exist. Lawyers can cite 

everything from decisions of the Supreme Court to “revised and extended 

remarks” inserted into the Congressional Record to op-ed pieces in local 

newspapers; why should the “unpublished” judicial orders be the only 

matter off limits to citation and argument? It implies that judges have 

something to hide. 

 In some corners there is a perception that they do—that unpublished 

orders are used to sweep under the rug departures from precedent. [This 

judge is confident that, at least in his circuit, unpublished opinions are not 

used improperly.] . . . Still, to the extent that . . . the bar believes that this 

occurs, whether it does or not—allowing citation serves a salutary 

purpose and reinforces public confidence in the administration of 

justice.91

d. Unequal Treatment

No-citation rules also give rise to the appearance—if not the reality—of 

two classes of justice: high-quality justice for wealthy parties represented 

by big law firms, and low-quality justice for “no-name appellants 

represented by no-name attorneys.”92 Large institutional litigants—and the 

big firms that represent them—disproportionately receive careful attention 

to their briefs, an oral argument, and a published decision written by a 

judge. Others—including the poor and the middle class, prisoners, and pro 

se litigants—disproportionately receive a quick skim of their briefs, no oral 

argument, and an unpublished decision copied out of a bench memo by a 

clerk. 

e. Avoidable Mistakes

Defenders of no-citation rules insist that, although judges pay little 

attention to the language of unpublished opinions, they are careful to ensure 

that the results are correct. The problem with this argument is that it 

“assumes that reasoning and writing are not linked, that is, that clarity 

characterizes the panel’s thinking about the proper decisional rule, but 

writing out that clear thinking is too burdensome.”93 Every judge has had 

the experience of finding that an initial decision just “won’t write,” and thus 

every judge knows that it is manifestly untrue that reasoning and writing 

can be separated. One judge put it this way: 

 91. E-mail from Frank H. Easterbrook, Circuit Judge, U.S. Court of Appeals for the 

Seventh Circuit, to Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 1-2 

(Feb. 13, 2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP367.pdf [hereinafter Easterbrook Letter] (Comment 03-AP-367). 

 92. Letter from Beverly B. Mann to Samuel A. Alito, Jr., Chair, Advisory Comm. on 

Appellate Rules 4 (Feb. 15, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-408.pdf (Comment 03-AP-408). 

 93. Cappalli, supra note 81, at 785. 
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50 FORDHAM LAW REVIEW [Vol. 74 

 There is . . . a wholesome, and perhaps necessary, discipline in our 

ensuring that unpublished orders can be cited to the courts. . . . 

[R]elegating this material to non-citable status is an invitation toward 

mediocrity in decisionmaking and the maintenance of a subclass of cases 

that often do not get equal treatment with the cases in which a published 

decision is rendered.94

f. Inconsistent Local Rules

The inconsistent local rules among circuits do indeed create a hardship 

for attorneys who practice in more than one circuit—a hardship that 

opponents of Rule 32.1 too quickly dismiss. The suggestion of some 

opponents of Rule 32.1 that the Advisory Committee is insincere in its 

concern for the impact of inconsistent local rules on those who practice in 

more than one circuit is belied by the fact that perhaps no problem has been 

the focus of more of the Advisory Committee’s and Standing Committee’s 

attention over the past few years. The Appellate Rules have been amended 

several times—most recently in 2002—to eliminate variations in local 

rules. Rule 32.1 and other rules published in August 2003 would do the 

same. The Advisory Committee and the Standing Committee believe 

strongly that an attorney should be able to file an appeal in a circuit without 

having to read and follow dozens of pages of local rules. Inconsistent local 

rules can only be eliminated one at a time. Any rule that makes federal 

appellate practice more uniform by eliminating one set of inconsistent local 

rules is obviously going to leave other inconsistent local rules untouched. 

That is not an excuse for opposing the rule. 

g. First Amendment 

Opponents of Rule 32.1 have also been too quick to dismiss the First 

Amendment problems posed by no-citation rules. No-citation rules offend 

First Amendment values—if not the First Amendment itself95—in banning 

truthful speech about a matter of public concern (indeed, about a 

governmental action that is in the public domain). They also offend First 

Amendment values in forbidding an attorney from making a particular type 

of argument in support of his or her client—a type of argument that is 

forbidden, at least in part, because it would put the court to the 

 94. Ripple Letter, supra note 77, at 2. 

 95. Several judges, lawyers, and law professors have argued that no-citation rules violate 

the First Amendment. See, e.g., Richard S. Arnold, The Federal Courts: Causes of 

Discontent, 56 SMU L. Rev. 767, 778 (2003); David Greenwald & Frederick A.O. Schwarz, 

Jr., The Censorial Judiciary, 35 U.C. Davis L. Rev. 1133, 1161-66 (2002); Salem M. Katsh 

& Alex V. Chachkes, Constitutionality of “No-Citation” Rules, 3 J. App. Prac. & Process 

287, 297-300 (2001); Christopher J. Peters, Adjudicative Speech and the First Amendment, 

51 UCLA L. Rev. 705, 780-83 (2004); Marla Brooke Tusk, Note, No-Citation Rules as a 

Prior Restraint on Attorney Speech, 103 Colum. L. Rev. 1202, 1227-30 (2003); Charles L. 

Babcock, No-Citation Rules: An Unconstitutional Prior Restraint, Litigation, Summer 2004, 

at 33. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 51 

inconvenience of having to defend, explain, or distinguish one of its own 

prior actions. What the Supreme Court said in Legal Services Corp. v. 

Velazquez96 about restrictions that Congress had placed on legal services 

attorneys could be said about the restrictions that no-citation rules place on 

all attorneys: 

Restricting [Legal Services Corporation] attorneys in . . . presenting 

arguments and analyses to the courts distorts the legal system by altering 

the traditional role of the attorneys. . . . An informed, independent 

judiciary presumes an informed, independent bar. . . . By seeking to 

prohibit the analysis of certain legal issues and to truncate presentation to 

the courts, the enactment under review prohibits speech and expression 

upon which courts must depend for the proper exercise of the judicial 

power.97

No-citation rules are not like limits on the size of briefs. They differ in 

the character of the restriction and in the interest purportedly being served 

by the restriction. A thirty-page limit on briefs does not forbid an attorney 

from making a particular argument or citing a particular action of the court, 

and page limits—which every court in America imposes—are necessary if 

courts are to function. No-citation rules, by contrast, forbid particular 

arguments (arguments that ask a court to follow one of its prior unpublished 

decisions), are imposed by only some courts, and are imposed by courts in 

order to protect themselves from having to take responsibility for their prior 

actions. 

6. Costs Imposed by Rule 32.1 

Commentators offer a “parade of horribles” that they claim will be 

suffered by judges, attorneys, and parties if Rule 32.1 is approved. Many of 

the “horribles” in this parade are the same “horribles” that were paraded out 

when unpublished opinions became available on Westlaw and LEXIS—and 

then again when unpublished opinions started being published in the 

Federal Appendix. None of the predictions was accurate. The predictions 

regarding Rule 32.1 are no more reliable. 

a. Experience of Permissive Courts

Dozens of state and federal courts have already liberalized or abolished 

no-citation rules, and there is absolutely no evidence that the dire 

predictions of Rule 32.1’s opponents have been realized in those 

jurisdictions. There is no evidence, for example, that judges are spending 

more time writing unpublished opinions or that attorneys are bombarding 

courts with citations to unpublished opinions or that legal bills have 

skyrocketed for clients. 

 96. 531 U.S. 533 (2001). 

97. Id. at 544-45. 
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52 FORDHAM LAW REVIEW [Vol. 74 

While it is true that there are differences among circuits, the circuits that 

permit citation are similar enough to the circuits that forbid citation that 

there should be some evidence that liberal citation rules cause harm, and yet 

no such evidence exists. It is no accident that most of the opposition to 

permitting citation to unpublished opinions comes from judges and 

attorneys who have no experience permitting citation to unpublished 

opinions. It is likewise no accident that little opposition to Rule 32.1 was 

heard from the judges and attorneys who have such experience. As one 

judge commented, 

What would matter are adverse effects and adverse reactions from the bar 

or judges of the 9 circuits (and 21 states) that now allow citation to 

unpublished orders. And from that quarter no protest has been heard. 

This implies to me that the benefits of accountability and uniform national 

practice carry the day.98

b. No Increase in Judicial Workloads

Several points can be made regarding the argument that Rule 32.1 would 

dramatically increase the workload of judges. 

First, there is no evidence that this has occurred in jurisdictions that have 

abandoned or liberalized no-citation rules. One reason why liberalizing nocitation rules does not seem to result in more work for judges is that 

unpublished opinions have never been written just for parties and counsel, 

as proponents of no-citation rules insist. Those decisions have also been 

written for the en banc court and the Supreme Court. “This may be why the 

nine circuits that allow citation to these documents have not experienced 

difficulty: the prospect of citation to a different panel requires no more of 

the order’s author than does the prospect of criticism in a petition for a writ 

of certiorari.”99

Second, judges already have available to them options that would reduce 

their workloads far more than no-citation rules. The overwork that judges 

cite in arguing against Rule 32.1 is in part a function of increasing 

caseloads—which are largely outside of judges’ control—but also a 

function of a particular style of judging. Some of the arguments against 

Rule 32.1 reflect an attitude toward judging that has become too common in 

the federal appellate courts and that should be changed. 

A judge who claims that he or she sometimes needs to go through 

seventy or eighty drafts of a published opinion before getting every word 

exactly right has confused the function of a judge with the function of a 

legislator. Judges are appointed not to draft statutes, but to resolve concrete 

disputes. What they hold is law; everything else is dicta. Lower-court 

judges understand this; they know how to read a decision and extract its 

holding. Judges could save a lot of time if they would abandon “the 

 98. Easterbrook Letter, supra note 91 at 1. 

99. Id. at 2. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 53 

discursive, endless federal appellate opinion.”100 Judges should write short, 

direct opinions that address only the one or two issues that most need 

substantial discussion. Instead, judges too often trudge through every issue 

mentioned anywhere in a brief. Judges should also spend less time 

obsessing over every footnote and comma. 

Much the same could be said about the drafting of unpublished opinions. 

If unpublished opinions were written as judges claim—if they were two- or 

three-paragraph opinions that started with “the parties are familiar with the 

facts” and then very briefly described why the court agreed or disagreed 

with the major contentions—then parties would not want to cite them. But 

many unpublished decisions go far beyond this. They are ten or twelve 

pages long, they contain a great deal of discussion of the facts, and they go 

on and on about the law. If an opinion looks like a duck and quacks like a 

duck, parties are going to want to cite it like a duck. 

It is odd to fix the problems with unpublished opinions—not by fixing 

the problems with unpublished opinions—but by barring people from 

talking about the problems with unpublished opinions. Judges would not 

need no-citation rules if they would confine themselves to issuing (i) full 

precedential opinions in cases that warrant such treatment or (ii) two- or 

three-paragraph explanations in cases that do not. The problem is that 

judges insist on “a third, intermediate option: a full and reasoned but 

unprecedent[ial] appellate opinion.”101 Judges have only themselves to 

blame. 

Third, if abolishing no-citation rules had the impact on judges’ workloads 

that Rule 32.1’s opponents fear, then no-citation rules would not be on the 

wrong side of history. But they are. 

 The citadel of no-citation rules is falling. There is a clear trend, both 

in the individual federal circuits and in the states, toward abandoning 

those rules. Nine of the thirteen circuits now allow citation of 

unpublished opinions. And while a majority of the states still prohibit 

such citation, the margin is slim and dwindling.102

As courts have uniformly gotten busier, the trend has uniformly been 

toward liberalizing rules regarding the citation of unpublished opinions. 

Obviously even busy courts have been able to handle their caseloads despite 

abolishing no-citation rules. 

Fourth, Rule 32.1 would, in some respects, reduce the workload of 

judges, because no-citation rules require judges and litigants to treat as 

 100. Cappalli, supra note 81, at 789. 

 101. E-mail from Andrew M. Siegel, Professor of Law, Univ. of S.C. Sch. of Law, to 

Advisory Comm. on Appellate Rules 1 (Jan. 30, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-219.pdf (Comment 03-AP-219). 

 102. Stephen R. Barnett, No-Citation Rules Under Siege: A Battlefield Report and 

Analysis, 5 J. App. Prac. & Process 473, 497 (2003) (attached to Letter from Stephen R. 

Barnett, Elizabeth J. Boalt Prof. of Law Emeritus, Univ. of Cal., Berkeley, to Advisory 

Comm. on Appellate Rules (Jan. 6, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-032.pdf) (Comment 03-AP-032). 
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54 FORDHAM LAW REVIEW [Vol. 74 

issues of first impression questions that have already been addressed many 

times by the circuit. Take, for example, United States v. Rivera-Sanchez,

103

in which the Ninth Circuit admitted that various panels had issued at least 

twenty unpublished opinions resolving the same unsettled issue of law at 

least three different ways—all before any published opinion addressed the 

issue. To quote Rivera-Sanchez, 

 Our conclusion that this decision meets the criteria for publication was 

prompted by the fact that it establishes a rule of law that we had not 

previously announced in a published opinion. Various three-judge panels 

of our court, however, have issued a number of unpublished 

memorandum decisions taking different approaches to resolving the 

question whether the Supreme Court’s opinion in Almendarez-Torres v. 

United States, 523 U.S. 224 (1998), requires a district court faced with a 

defendant convicted of illegal re-entry after deportation whose indictment 

refers to both 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) to resentence 

or merely correct the judgment of conviction. These conflicting mandates 

undoubtedly have created no small amount of confusion for district judges 

who serve in border districts. While our present circuit rules prohibit the 

citation of unpublished memorandum dispositions, see 9th Cir. R. 36-3, 

we are mindful of the fact that they are readily available in on line legal 

databases such as Westlaw and Lexis. 

 During oral argument, we asked counsel to submit a list of the 

unpublished dispositions of this court that have confronted this issue. The 

parties produced a list of twenty separate unpublished dispositions 

instructing district courts to take a total of three different approaches to 

correct the problem. Under our rules, these unpublished memorandum 

dispositions have no precedential value, see 9th Cir. R. 36-3, and this 

opinion now reflects the law of the circuit. To avoid even the possibility 

that someone might rely upon them, however, we list these unpublished 

memorandum decisions below so that counsel and the district courts will 

know that each of them has been superseded today.104

It is hard to know how the Ninth Circuit’s no-citation rule saved the court 

any time in this instance. An issue that could have been settled 

authoritatively on the first or second occasion instead was litigated at least 

twenty-one times. Had an attorney representing a party in, say, the sixth 

case been able to draw the court’s attention to its five prior decisions, it 

seems likely that the court would have issued a published opinion settling 

the issue. And attorneys likely would not have litigated the issue over and 

over again if the court’s rules had not required them to treat an issue that 

had already been addressed twenty times as an issue of first impression. 

No-citation rules keep issues “in play”—and thus encourage litigation—

much longer than necessary. 

 103. 222 F.3d 1057 (9th Cir. 2000). 

104. Id. at 1062-63 (citations omitted). 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 55 

c. No Increase in Summary Dispositions

Regarding the argument that Rule 32.1 would result in more one-line 

dispositions: Opponents of Rule 32.1 have argued both (i) that one-line 

dispositions would be harmful because parties would not get an explanation 

of why they won or lost and (ii) that the explanation that many unpublished 

opinions give parties about why they won or lost is not accurate. What 

judges are arguing is that they need to be able to keep up the illusion of 

giving parties adequate explanations for the results of cases. This is not a 

compelling reason to maintain no-citation rules. It would be better for 

courts to issue no opinion at all than an opinion that so poorly reflects the 

views of the judges that those judges are unwilling to have it cited back to 

them. If, as many judges claim, unpublished opinions accurately report 

only a result—and not necessarily the reason for the result—then the court 

should just issue a result. As one commentator wrote, 

 If the result of adopting the proposed rule is to force judicial staff to 

write less in unpublished orders, then so be it. It is better to have a onesentence disposition written by an actual judge th[a]n three pages written 

by a recent law school graduate masquerading as a judge. There is no 

point . . . for offering an explanation of the court’s reasoning to litigants 

when the court itself is unwilling to be bound by that reasoning.105

d. No Misleading of Courts

Regarding the argument that Rule 32.1 would result in unpublished 

opinions being used to mislead courts—or that courts would misuse or 

misunderstand unpublished opinions: The circuit judges who write 

unpublished opinions do not need this protection. Whatever the flaws of 

unpublished opinions, those flaws are best known to the judges who write 

them. It is unlikely that a court will give its own opinion “too much” 

weight or not understand the limitations of an opinion that it wrote. 

Lower-court judges also do not need this protection. Some of the 

comments against Rule 32.1 take a dim view of the abilities of district court 

judges. Commentators suggest, for example, that no-citation rules are 

needed to keep district court judges from being “distracted” by citations to 

unpublished opinions and to prevent judges from giving those opinions too 

much weight. This concern is misplaced. District court judges are 

entrusted on a daily basis with the lives and fortunes of those who appear 

before them. They regularly grapple with the most complicated legal and 

factual issues imaginable. They are quite capable of understanding and 

respecting the limitations of unpublished opinions. 

Moreover, district courts have non-binding authorities cited to them 

every day. For example, a district court in Oregon may have a decision of 

 105. Letter from S.M. Oliva, President, Citizens for Voluntary Trade, to Peter G. 

McCabe, Sec’y, Comm. on Rules of Practice & Procedure 2 (Feb. 16, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-414.pdf (Comment 03-AP-414). 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

56 FORDHAM LAW REVIEW [Vol. 74 

the Ninth Circuit, a decision of the Second Circuit, a decision of the Illinois 

Supreme Court, and a law review article cited to it in the course of one 

brief. It is not terribly difficult for the district court to understand the 

difference between the Ninth Circuit cite and the other cites. Likewise, it 

will not be terribly difficult for the district court to understand the 

difference between a published opinion of the Ninth Circuit that it is 

obligated to follow and an unpublished decision that it is not. 

District judges have the courage to disagree with unpublished decisions 

that they believe are wrong. Moreover, given that numerous circuit judges 

have commented publicly about the poor quality of unpublished decisions, 

it may not even take much courage to disagree with those decisions. In 

several circuits, unpublished decisions can be cited to district courts, and 

there is no evidence that district courts have felt compelled to treat those 

decisions as binding for fear of provoking the appellate courts. 

e. No Burden on Attorneys or Parties

Regarding the argument that Rule 32.1 would result in attorneys having 

to do much more legal research and clients having to pay much higher legal 

bills: To begin with, if no-citation rules really spared attorneys and their 

clients from the fate predicted by opponents of Rule 32.1, then those rules 

would be widely supported by the bar. They are not, at least outside of the 

Ninth Circuit. The American Bar Association (“ABA”) House of Delegates 

declared in 2001 that no-citation rules are “contrary to the best interests of 

the public and the legal profession” and called on the federal appellate 

courts to “[p]ermit citation to relevant unpublished opinions.”106 The 

former chair of the D.C. Circuit’s Advisory Committee on Procedures 

wrote, “Probably more than any other facet of appellate practice, these [nocitation] policies have drawn well-deserved criticism from the bar and from 

scholars. When I chaired the D.C. Circuit’s Advisory Committee on 

Procedures, this kind of practice was perennially and uniformly 

condemned—all to no avail.”107 Rule 32.1 is supported by such national 

organizations as the ABA,108 the American College of Trial Lawyers,109

and the American Academy of Appellate Lawyers;110 by bar organizations 

 106. Am. Bar Ass’n, Sections of Litig., Criminal Justice, Tort and Ins. Practice, and 

Senior Lawyers Div., Report to the House of Delegates (2001) (Resolution No. 01A115). 

 107. Letter from Philip Allen Lacovara, Mayer, Brown, Rowe & Maw LLP, to Peter G. 

McCabe, Sec’y, Comm. on Rules of Practice & Procedure 3 (Oct. 28, 2003), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-016.pdf (Comment 03-AP-016). 

108. See Hearing Transcript, supra note 38, at 85-95 (testimony of Judah Best on behalf 

of the American Bar Association). 

109. See id. at 208-29 (testimony of William T. Hangley on behalf of American College 

of Trial Lawyers); see also William T. Hangley, Opinions Hidden, Citations Forbidden: A 

Report and Recommendations of the American College of Trial Lawyers on the Publication 

and Citation of Nonbinding Federal Circuit Court Opinions, 208 F.R.D. 645 (2002). 

110. See Letter from Kenneth C. Bass, III, President, Am. Acad. of Appellate Lawyers, to 

Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules (Nov. 11, 2002) (on file 

with author). 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 57 

in New York111 and Michigan;112 and by such public-interest organizations 

as Public Citizen Litigation Group113 and Trial Lawyers for Public 

Justice.114 By contrast, only lawyers who clerked for or who appear before 

Ninth Circuit judges have complained in great number about Rule 32.1. If 

Rule 32.1 were likely to create the predicted problems, lawyers from 

throughout the United States should be rising up against it, led by such 

organizations as the ABA. 

In any event, Rule 32.1 would not create serious problems for attorneys 

and their clients. Opponents of Rule 32.1 are simply wrong in arguing that 

they now have no duty to research unpublished opinions, but, if those 

opinions could be cited, they would then have a duty to research all 

unpublished opinions. It is not the ability to cite unpublished opinions that 

triggers a duty to research them. If unpublished opinions contain something 

of value, then attorneys already have an obligation to research them—so as 

to be able to advise clients about the legality of their conduct, predict the 

outcome of litigation, and get ideas about how to frame and argue issues 

before the court. If unpublished opinions do not contain something of 

value, then attorneys will not have an obligation to research them even if 

they can be cited. No rule of professional responsibility requires attorneys 

to research useless materials. 

In researching unpublished opinions, attorneys already apply the same 

common sense that they apply in researching everything else. No attorney 

conducts research by reading every case, treatise, law review article, and 

other writing in existence on a particular point—and no attorney will 

conduct research that way if unpublished opinions can be cited. If a point is 

well-covered by published opinions, an attorney will not read unpublished 

opinions at all. But if a point is not addressed in any published opinion, an 

attorney will look at unpublished opinions, as he or she should. 

111. See Letter from Thomas H. Moreland, Chair, Comm. on Fed. Courts, Ass’n of the 

Bar of the City of N.Y., to Peter G. McCabe, Sec’y, Committee on Rules of Practice & 

Procedure (Feb. 12, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-464.pdf (Comment 03-AP-464); Email from Jean E. Nelson, Comm. on Courts of Appellate Jurisdiction, N.Y. State Bar Ass’n, 

to Advisory Committee on Appellate Rules (Jan. 12, 2004, 12:38 PM EST), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-097.pdf (Comment 03-AP-097). 

112. See E-mail from Joseph G. Scoville, Chair, Comm. on U.S. Courts, State Bar of 

Mich., to Peter G. McCabe, Sec’y, Comm. on Rules of Practice & Procedure 5 (Feb. 5, 

2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-394.pdf 

(Comment 03-AP-394). 

113. See Letter from Brian Wolfman, Pub. Citizen Litig. Group, to Peter G. McCabe, 

Sec’y, Comm. on Rules of Practice & Procedure, app. at 2 (Oct. 9, 2003), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-008.pdf (Comment 03-AP-008); 

Hearing Transcript, supra note 38, at 324-34 (testimony of Brian Wolfman on behalf of 

Public Citizen Litigation Group). 

114. See Frankel Letter, supra note 74; Hearing Transcript, supra note 38, at 65-85 

(testimony of Richard Frankel on behalf of Trial Lawyers for Public Justice). 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

58 FORDHAM LAW REVIEW [Vol. 74 

III. THE STUDIES

The Advisory Committee discussed these arguments at length at its April 

2004 meeting.115 Most of the members were more persuaded by the 

comments supporting Rule 32.1 than by the more numerous comments 

opposing it. Supporters of Rule 32.1 spoke about the issue as one of 

principle, and spoke in strong terms, calling no-citation rules “extreme” and 

“ludicrous.”116 Supporters also dismissed the “parade of horribles” that had 

been raised by opponents of Rule 32.1 by pointing out that many federal 

and state jurisdictions had already liberalized their no-citation rules, and 

there was no evidence that those jurisdictions had experienced any of the 

“horribles.”117

In addition to debating the merits of Rule 32.1, the Advisory Committee 

discussed whether action on Rule 32.1 should be postponed and the FJC 

and AO invited to study some of the claims made by the commentators.118 

In the end, most members opposed a postponement, arguing that such a 

study would be difficult to conduct and would change few minds.119 The 

Advisory Committee voted six to one to approve Rule 32.1.120

Rule 32.1 went before the Standing Committee in June 2004.121 

Members of the Standing Committee seemed favorably disposed toward 

Rule 32.1, but they nevertheless decided to return the proposed rule to the 

Advisory Committee for further study.122 Standing Committee members 

noted that some of the claims of those commentators—such as the claim 

that liberalizing no-citation rules would result in longer disposition times—

could be tested empirically, and members said that, before voting on Rule 

32.1, they wanted to make certain that every reasonable step was taken to 

gather information.123

Over the next year, both the FJC and AO collected data relevant to the 

arguments that had been made for and against Rule 32.1. The FJC agreed 

to survey circuit judges and appellate attorneys about such topics as the 

likely impact of liberalizing citation rules on the workloads of judges.124 

115. See Minutes of Spring 2004 Meeting of Advisory Committee on Appellate Rules 2-

12 (Apr. 13-14, 2004), available at http://www.uscourts.gov/rules/Minutes/app0404.pdf. 

116. Id. at 8. 

117. See id.

118. See id. at 8-9. 

119. See id. at 9. 

120. See id. A member who was unavoidably absent later informed the Advisory 

Committee that he would have voted against the proposed rule. See id.

121. See Minutes of Meeting of Committee on Rules of Practice and Procedure 8-11 

(June 17-18, 2004), available at http://www.uscourts.gov/rules/Minutes/june2004.pdf. 

122. See id. at 11. 

123. See id. at 10-11. 

 124. The FJC also decided to study a sample of cases from each circuit to explore, among 

other things, how often unpublished opinions are cited compared to other non-binding 

sources. This aspect of its study reflected the general desire of the FJC to study the 

operation of the federal courts more than it reflected the particular questions raised by Rule 

32.1, and thus I will not summarize this part of the FJC’s findings in this Article. See Reagan 

et al., supra note 8, at 21-26. 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 59 

For its part, the AO agreed to analyze data already in its possession to 

determine whether liberalizing or abolishing no-citation rules causes either 

an increase in case-disposition times or an increase in the percentage of 

cases disposed of by one-line judgment orders. 

A. FJC Study

The FJC sent surveys to all 257 circuit judges (active and senior) and to 

attorneys who had appeared in a random sample of fully-briefed federal 

appellate cases.125 The attorneys received identical surveys. The judges 

did not. Rather, the questions asked of a judge depended on whether the 

judge was in a restrictive circuit, a discouraging circuit, or a permissive 

circuit. Moreover, special questions were asked of judges in the First and 

D.C. Circuits, which recently liberalized their no-citation rules.126 The 

response rate for both judges127 and attorneys128 was very high. 

1. Survey of Judges 

The FJC asked the judges in the nine circuits that now permit the citation 

of unpublished opinions in at least some circumstances—that is, the six 

discouraging and three permissive circuits—whether changing their rules to 

bar the citation of unpublished opinions would affect the length of those 

opinions or the time that judges devote to preparing those opinions. A large 

majority of judges said that neither would change.129 Similarly, the FJC 

asked the judges in the three permissive circuits whether changing their 

rules to discourage the citation of unpublished opinions would have an 

impact on either the length of the opinions or the time spent drafting them. 

Again, a large majority said that such a change would have no impact.130 

As noted above, opponents of Rule 32.1 have argued that, the more freely 

unpublished opinions can be cited, the more time judges will have to spend 

drafting them. Opponents of Rule 32.1 have also predicted that, if the rule 

is approved, unpublished opinions will either increase in length (as judges 

make them “citable”) or decrease in length (as judges make them 

“uncitable”). The responses of the judges in the nine circuits that now 

permit citation provided no support for these contentions. 

The FJC asked the judges in the four restrictive circuits and in the six 

discouraging circuits whether approval of Rule 32.1 (a “permissive” rule) 

would result in changes to the length of unpublished opinions. A 

substantial majority of the judges in the six discouraging circuits—that is, 

judges who have some experience with the citation of unpublished 

opinions—replied that it would not (contrary to the predictions of Rule 

125. See id. at 1-2. 

126. See id.

127. See id. at 3, 29 tbl.A. 

128. See id. at 15, 44 tbl.P. 

129. See id. at 4-5, 30 tbl.B, 31 tbl.C. 

130. See id. at 5-6, 32 tbl.D, 33 tbl.E. 
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60 FORDHAM LAW REVIEW [Vol. 74 

32.1’s opponents).131 A large majority of the judges in the four restrictive 

circuits—that is, judges who do not have experience with the citation of 

unpublished opinions—predicted a change, but, interestingly, they did not 

agree about the likely direction of the change.132 For example, in the 

Second Circuit, ten judges said the length of opinions would decrease, two 

judges said it would stay the same, and eight judges said it would 

increase.133 In the Seventh Circuit, three judges predicted shorter opinions, 

five no change, and four longer opinions.134

The FJC also asked the judges in the four restrictive circuits and in the 

six discouraging circuits whether approval of Rule 32.1 would result in 

judges having to spend more time preparing unpublished opinions—a key 

claim of those who oppose Rule 32.1. Again, the responses varied, 

depending on whether the circuit had any experience with permitting the 

citation of unpublished opinions. 

A majority of the judges in the six discouraging circuits said that there 

would be no change, and, among the minority of judges who predicted an 

increase, most predicted a “very small,” “small,” or “moderate” increase.135 

Only a small minority agreed with the argument of Rule 32.1’s opponents 

that the proposed rule would result in a “great” or “very great” increase in 

the time devoted to preparing unpublished opinions.136

The responses from the judges in the four restrictive circuits were more 

mixed,137 but, on the whole, less gloomy than opponents of Rule 32.1 might 

have predicted. In the Seventh Circuit, a majority of judges—eight of 

thirteen—predicted that the time devoted to unpublished opinions would 

either stay the same or decrease. Only four Seventh Circuit judges 

predicted a “great” or “very great” increase.138 Likewise, half of the judges 

in the Federal Circuit—seven of fourteen—predicted that the time devoted 

to unpublished opinions would not increase, and four other judges predicted 

only a “moderate” increase. Only three Federal Circuit judges predicted a 

“great” or “very great” increase.139 The Second Circuit was split almost in 

thirds: Seven judges predicted no impact or a decrease, six judges predicted 

a “very small,” “small,” or “moderate” increase, and six judges predicted a 

“great” or “very great” increase.140 Even in the Ninth Circuit, seventeen of 

forty-three judges predicted no impact or a decrease—almost as many as 

the twenty who predicted a “great” or “very great” increase.141

131. See id. at 7, 35 tbl.G. 

132. See id. at 7-8, 35 tbl.G. 

133. See id. at 35 tbl.G. 

134. See id.

135. See id. at 8-9, 36 tbl.H. 

136. See id.

137. See id.

138. See id. at 36 tbl.H. 

139. See id.

140. See id.

141. See id.
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2005] THE CITATION OF UNPUBLISHED OPINIONS 61 

The FJC asked the judges in the four restrictive circuits whether Rule 

32.1 would be uniquely problematic for them because of any “special 

characteristics” of their particular circuits.142 A majority of Seventh Circuit 

judges said “no.”143 A majority of Second, Ninth, and Federal Circuit 

judges said “yes.”144 But in response to a request that they identify those 

“special characteristics,” few respondents were able to cite anything 

“special.” Rather, most cited concerns that would apply to all circuits, such 

as the argument that, if unpublished opinions could be cited, judges would 

spend more time drafting them.145

The FJC asked judges in the nine circuits that permit citation of 

unpublished opinions how much additional work is created when a brief 

cites unpublished opinions. A large plurality (fifty-seven)—including half 

of the judges in the permissive circuits—said that the citation of 

unpublished opinions in a brief creates only “a very small amount” of 

additional work. A large majority said that it creates either “a very small 

amount” (fifty-seven) or “a small amount” (twenty-eight). Only two 

judges—both in discouraging circuits—said that the citation of unpublished 

opinions creates “a great amount” or “a very great amount” of additional 

work.146 (That, of course, is what opponents of Rule 32.1 contend.) 

The FJC asked judges in the nine circuits that permit the citation of 

unpublished opinions how often such citations are helpful. A majority 

(sixty-eight) said “never” or “seldom”—the position of Rule 32.1’s 

opponents—but quite a large minority (fifty-five) said “occasionally,” 

“often,” or “very often.” Only a small minority (fourteen) agreed with the 

contention of some of Rule 32.1’s most ardent opponents that unpublished 

opinions are “never” helpful.147

The FJC asked judges in the nine circuits that permit the citation of 

unpublished opinions how often parties cite unpublished opinions that are 

inconsistent with the circuit’s published opinions. According to opponents 

of Rule 32.1, unpublished opinions should almost never be inconsistent 

with published circuit precedent. The FJC survey provided support for that 

view, as a majority of judges responded that unpublished opinions are 

“never” (nineteen) or “seldom” (sixty-seven) inconsistent with published 

opinions. Somewhat surprisingly, though, a not insignificant minority 

(thirty-six) said that unpublished opinions are “occasionally,” “often,” or 

“very often” inconsistent with published precedent.148

Finally, the FJC directed a couple of questions just to the judges in the 

First and D.C. Circuits. Both courts have recently liberalized their citation 

142. See id. at 9-10. 

143. See id. at 37 tbl.I. 

144. See id.

145. See id. at 9-10, app. A. 

146. See id. at 10, 38 tbl.J. 

147. See id. at 10-11, 39 tbl.K. 

148. See id. at 11, 40 tbl.L. 
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62 FORDHAM LAW REVIEW [Vol. 74 

rules, the First Circuit changing from restrictive to discouraging,149 and the 

D.C. Circuit from restrictive to permissive (although the D.C. Circuit is 

permissive only with respect to unpublished opinions issued on or after 

January 1, 2002).150 The FJC asked the judges in those circuits how much 

more often parties cite unpublished opinions after the change. A majority 

of the judges—seven of eleven—said “somewhat” more often. (Three said 

“as often as before” and one said “much more often.”151) The judges were 

also asked what impact the rule change had on the time needed to draft 

unpublished opinions and on their overall workload. Again, opponents of 

Rule 32.1 have claimed that, if citing unpublished opinions becomes easier, 

judges will have to spend more time drafting them, and that, in general, the 

workload of judges will increase. The responses of the judges in the First 

and D.C. Circuits did not support those claims. All of the judges—save 

one—said that the time they devote to preparing unpublished opinions had 

“remained unchanged.” Only one judge reported a “small increase” in 

work.152 And all of the judges—save one—said that liberalizing their rule 

had caused “no appreciable change” in the difficulty of their work. Only 

one judge reported that the work had become more difficult, but even that 

judge said that the change had been “very small.”153

2. Survey of Attorneys 

As noted, the FJC also surveyed the attorneys who had appeared in a 

random sample of fully-briefed federal appellate cases. The first few 

questions that the FJC posed to those attorneys related to the particular 

appeal in which they had appeared. 

The FJC first asked attorneys whether, in doing legal research for the 

particular appeal, they had encountered at least one unpublished opinion of

the forum circuit that they wanted to cite but could not, because of a nocitation rule. Over a third of attorneys (forty percent) said “yes.”154 It was 

not surprising that the percentage of attorneys who said “yes” was highest 

in the restrictive circuits (fifty-one percent) and lowest in the permissive 

circuits (thirty-one percent). What was surprising was that almost a third of 

the attorneys in the permissive circuits responded “yes.” Given that the 

Third155 and Fifth Circuits156 impose no restriction on the citation of 

unpublished opinions—and given that the D.C. Circuit restricts the citation 

only of unpublished opinions issued before January 1, 2002157—the number 

149. See 1st Cir. R. 32.3(a)(2). 

150. See D.C. Cir. R. 28(c)(1). 

151. See Reagan et al., supra note 8, at 12, 41 tbl.M. 

152. See id. at 12, 42 tbl.N. 

153. See id. at 12-13, 43 tbl.O. 

154. See id. at 15-16, 45 tbl.Q. 

155. See 3d Cir. Internal Operating P. 5.7. 

156. See 5th Cir. R. 47.5.4. The Fifth Circuit’s rule applies only to unpublished opinions 

issued on or after January 1, 1996. 

157. See D.C. Cir. R. 28(c)(1). 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 63 

of attorneys in those circuits who found themselves barred from citing an 

unpublished opinion should have been considerably less than thirty-one 

percent.158

When pressed by the Advisory Committee to explain this anomaly, Dr. 

Tim Reagan—the lead author of the study—responded that the FJC found 

that, to a surprising extent, judges and lawyers were unaware of the terms of 

their own citation rules. He speculated that some attorneys in permissive 

circuits may be more influenced by the general culture of hostility to 

unpublished opinions than by the specific terms of their circuit’s local 

rules.159

The FJC also asked attorneys, with respect to the particular appeal, 

whether they had come across an unpublished opinion of another circuit 

that they wanted to cite but could not, because of a no-citation rule. Over a 

quarter of attorneys (twenty-seven percent) said yes.160 Again, the 

affirmative responses were highest in the restrictive circuits (thirty-two 

percent). 

The FJC asked attorneys, with respect to the particular appeal, whether 

they would have cited an unpublished opinion if the citation rules of the 

circuit had been more lenient. Nearly half of the attorneys (forty-eight 

percent) said that they would have cited at least one unpublished opinion of 

that circuit,161 and about a third (thirty-two percent) said that they would 

have cited at least one unpublished opinion of another circuit.162 Again, 

affirmative responses were highest in the restrictive circuits (fifty-nine 

percent and thirty-three percent, respectively), second highest in the 

discouraging circuits (forty-five percent and thirty-three percent), and 

lowest in the permissive circuits (thirty-nine percent and twenty-nine 

percent). 

The FJC asked attorneys to predict what impact the enactment of Rule 

32.1 would have on their overall appellate workload. Their choices were 

“substantially less burdensome” (one point), “a little less burdensome” (two 

points), “no appreciable impact” (three points), “a little bit more 

burdensome” (four points), and “substantially more burdensome” (five 

points). The average “score” was 3.1.163 In other words, attorneys as a 

group reported that a rule freely permitting the citation of unpublished 

opinions would not have an “appreciable impact” on their workloads—

contradicting a major prediction of opponents of Rule 32.1. 

Finally, the FJC asked attorneys to provide a narrative response to an 

open-ended question requesting them to predict the likely impact of Rule 

158. See Reagan et al., supra note 8, at 16. 

159. See Draft Minutes of Spring 2005 Meeting of Advisory Committee on Appellate 

Rules 11 (Apr. 18, 2005) [hereinafter Spring 2005 Draft Minutes]. As of this writing, the 

draft minutes of the April 2005 meeting have not been approved by the Advisory 

Committee. 

160. See Reagan et al., supra note 8, at 16, 46 tbl.R. 

161. See id. at 16, 47 tbl.S. 

162. See id. at 17, 48 tbl.T. 

163. See id. at 17, 49 tbl.U. 
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64 FORDHAM LAW REVIEW [Vol. 74 

32.1. If one assumes that an attorney who predicted a negative impact 

opposed Rule 32.1 and that an attorney who predicted a positive impact 

supported Rule 32.1, then fifty-four percent of attorneys favored the rule, 

twenty-five percent were neutral, and only twenty percent opposed it.164 In 

every circuit—save the Ninth—the number of attorneys who predicted that 

Rule 32.1 would have a positive impact outnumbered the number of 

attorneys who predicted that Rule 32.1 would have a negative impact.165 

The difference was almost always at least two to one, often at least three to 

one, and, in a few circuits, over four to one. Only in the Ninth Circuit—the 

epicenter of opposition to Rule 32.1—did opponents outnumber supporters, 

and that was by only fifty percent to thirty-eight percent.166

B. AO Study

As noted, the AO also did research for the Advisory Committee. The AO 

identified, with respect to the nine circuits that do not forbid the citation of 

unpublished opinions, the year that each circuit liberalized or abolished its 

no-citation rule.167 The AO examined data for that base year, as well as for 

the two years preceding and (where possible) the two years following that 

base year.168 The AO focused on median case disposition times169 and on 

the number of cases disposed of by one-line judgment orders (referred to by 

the AO as “summary dispositions”). 

The AO reported that “[t]he data show[] little or no evidence that the 

adoption of a permissive citation policy impacts the median disposition 

time in either direction”170 and “little or no evidence that the adoption of a 

permissive citation policy impacts the number of summary dispositions.”171 

The data simply failed to support two of the key arguments made by 

opponents of Rule 32.1: that allowing citation of unpublished opinions will 

result in judges spending much more time drafting opinions and in courts 

disposing of many more cases by one-line orders. 

C. Impact of the Studies

The Advisory Committee discussed the FJC and AO studies at great 

length at its April 2005 meeting.172 All members of the Advisory 

Committee agreed that the studies were well done and that they failed to 

support the main contentions of Rule 32.1’s opponents. The Advisory 

Committee disagreed only about the extent to which the studies went 

164. See id. at 18. 

165. See id. at 18, 50 tbl.V. 

166. See id. at 50 tbl.V. 

167. See Rabiej Memorandum, supra note 9, at 1. 

168. See id.

 169. The AO looked at both the time from submission of the briefs to final judgment and 

the time from oral argument to final judgment. See id.

170. Id.

171. Id. at 2. 

172. See Spring 2005 Draft Minutes, supra note 159, at 8-18. 
SCHILTZCHANGESENTEREDAFTERBP2 9/29/2005 6:24 PM 

2005] THE CITATION OF UNPUBLISHED OPINIONS 65 

further and actually refuted those contentions.173 All in all, though, it was a 

bad day for supporters of no-citation rules. By the end of the meeting, all 

ten Committee members—including two members who had previously 

opposed Rule 32.1—agreed that the local rules of the circuits should be 

supplanted by a national rule that would require the circuits to permit the 

citation of unpublished opinions in at least some circumstances. The two 

former opponents of Rule 32.1 favored a discouraging version of a citation 

rule (rather than Rule 32.1’s permissive version),174 but the other eight 

Committee members (including the chair, who votes only in case of a tie) 

favored Rule 32.1. The Advisory Committee voted seven to two to approve 

Rule 32.1.175

The Standing Committee took up Rule 32.1 at its June 2005 meeting. 

Any misgivings that members of the Standing Committee had about Rule 

32.1 appeared to have been dispelled by the FJC’s and AO’s studies. Rule 

32.1 was approved unanimously.176 In September 2005, the Judicial 

Conference approved Rule 32.1 on a divided vote after amending the rule 

so that it will apply only to unpublished opinions issued after the rule’s 

effective date. Rule 32.1 now moves on to the Supreme Court and, if 

approved there, to Congress. 

IV. THE ASSESSMENT

Rule 32.1 is the “comeback kid” of rules proposals. In 1998, the 

Advisory Committee voted unanimously to remove Rule 32.1 from its study 

agenda in light of the strong opposition of the chief judges.177 Rule 32.1 

was as dead as the proverbial doornail. Now, just seven years later, Rule 

32.1 has been overwhelmingly approved by that same Advisory 

Committee178 and unanimously approved by the Standing Committee.179

Like Rule 32.1’s fortunes, my own views about the proposal have 

changed over time. I began as an opponent of Rule 32.1. I now believe that 

the rule should be approved. Describing the evolution of my own thinking 

may help to shed light on why a proposal that appeared hopeless only a few 

years ago now appears to be on the brink of becoming law. 

A. Earlier Opposition

I was an agnostic on the merits of no-citation rules at the time I was 

appointed Reporter to the Advisory Committee. As a practitioner and then 

as a law professor, I had found unpublished opinions to be largely useless. 

I did not spend much time reading them, and, as best as I can recall, I had 

173. See id. at 12-13. 

174. See id. at 13-14. 

175. See id. at 18. 

176. See Key Judicial Panel Approves Rule Change Allowing Citation of Unpublished 

Opinions, 73 U.S.L.W. 2761 (2005). 

177. See Spring 1998 Minutes, supra note 34, at 29-30. 

178. See Spring 2005 Draft Minutes, supra note 159, at 18. 

179. See supra note 176 and accompanying text. 
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66 FORDHAM LAW REVIEW [Vol. 74 

little occasion to want to cite them. I suppose that, had I given the matter 

much thought, I would have opposed no-citation rules on the general 

principle that no government official should be able to say to a citizen: “I 

forbid you, on pain of sanction that I will impose, to mention to me a public 

action that I took in my official capacity.” But I had not, in fact, given the 

matter much thought. 

After I became Reporter, I argued consistently—albeit usually 

unsuccessfully—that the Advisory Committee should not devote time to the 

unpublished-opinions issue. I was motivated not by strong views about the 

merits of no-citation rules, but rather by what might be called “institutional” 

considerations. My reasoning was as follows: 

The REA process180—that is, the process by which proposed 

amendments to the federal rules of practice and procedure are considered 

and approved—enjoys unique credibility with lawmakers, the bench, and 

the bar. Several factors account for that credibility, but one of the most 

important is that the REA process generally works on a consensus or nearconsensus basis. For the most part, the advisory committees identify 

technical problems and propose uncontroversial solutions. 

There are exceptions, of course. Judges like to do things the way judges 

like to do things, so even a proposal about something as mundane as word 

limits on briefs filed in cross-appeals can attract strong arguments.181 

Generally, though, the advisory committees work hard to find common 

ground and build consensus. As a result, objections to proposed rules are 

usually neither very many nor very passionate. 

On rare occasions, though, the advisory committees do take on 

controversial issues and push ahead over the strong opposition of 

substantial numbers of judges. But those rare occasions do not harm the 

credibility of the REA process because they have two things in common. 

First, the advisory committees are addressing truly serious problems, such 

as discovery abuse or confusion over the admissibility of expert testimony. 

These are problems worth the considerable time, effort, and political capital 

necessary to push through controversial proposals. Second, the advisory 

committees have a high level of confidence that, despite opposition, the 

proposals are correct on the merits. 

Rule 32.1 is different from these other controversial proposals. Even 

assuming that it is correct on the merits—that is, even assuming that the 

arguments in favor of permitting citation are stronger than the arguments 

against it—Rule 32.1 simply does not address a problem that is serious 

enough to justify going toe-to-toe with much of the federal appellate bench. 

I agree with those opponents of Rule 32.1 who ask, in essence: “What’s the 

180. See supra note 12. 

181. See, e.g., Easterbrook Letter, supra note 91, at 3-4; Letter from Haldane Robert 

Mayer, Chief Judge, U.S. Court of Appeals for the Federal Circuit, to Peter G. McCabe, 

Sec’y, Comm. on Rules of Practice & Procedure 3-4 (Jan. 6, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-086.pdf (Comment 03-AP-086). 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 67 

big deal? What’s the problem crying out for a solution? Are no-citation 

rules really inflicting a lot of harm on a lot of people?” 

As far as I can tell, there is no evidence—even anecdotal—that nocitation rules cause substantial practical harm. Over the years, I have asked 

attorneys to identify for me cases in which the following were true: (1) the 

attorney had an unpublished opinion that he or she wanted to cite but could 

not; (2) the court likely did not learn of that unpublished opinion in any 

other way, such as through the court’s own research; and (3) had the court 

learned of that unpublished opinion, the court likely would have decided the 

case differently. It is, admittedly, a question that calls for a great deal of 

speculation, but lawyers to whom I have posed the question have each been 

able to identify, at most, only a case or two in which being able to cite an 

unpublished opinion likely would have made a difference to the outcome. 

The FJC has likewise been unable to find evidence that no-citation rules 

cause substantial practical harm. In responding to the FJC’s survey, the 

judges on the three permissive and six discouraging circuits were clear that 

citations to unpublished opinions make little difference. Only seven of 123 

judges said that citations to unpublished opinions are “often” or “very 

often” helpful; a majority said that such citations were “never” or “seldom” 

helpful.182 And only three of 122 judges said that the unpublished opinions 

that are cited are “often” or “very often” inconsistent with the circuit’s 

published opinions; by contrast, a large majority said that unpublished 

opinions “never” or “seldom” say something different from the published 

precedent.183 In short, there is little evidence that no-citation rules create 

practical problems. 

For that reason, I opposed Rule 32.1. Even assuming that the proposal 

was correct on the merits, I did not think that the proposed rule addressed a 

problem that was serious enough to justify pushing through a proposal 

opposed by a substantial number of judges and putting at risk the credibility 

enjoyed by the REA process. 

B. Later Support

My thinking has changed. One reason why my thinking has changed is 

that I have come to realize that, in assessing the importance of Rule 32.1, I 

was defining “importance” too narrowly. In particular, I was equating the 

practical impact of no-citation rules with the importance of no-citation 

rules. The practical impact of a rule is relevant in assessing its importance, 

but it is not determinative. A rule that has little practical consequence can 

nevertheless be very important. For example, a law that required every 

American to utter aloud a short prayer every day would have little practical 

impact, but, because such a law would offend so many fundamental civic 

values, few would dismiss the law as unimportant. 

182. See Reagan et al., supra note 8, at 39 tbl.K. 

183. See id. at 11, 40 tbl.L. 
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68 FORDHAM LAW REVIEW [Vol. 74 

As I have described elsewhere,184 no-citation rules implicate a number of 

fundamental civic values, including freedom of speech, the accountability 

of federal judges, the transparency of judicial proceedings, equal justice, 

professional autonomy, and the rule of law. This is not the place to assess 

the importance of each of these principles or to gauge how much each of 

these principles is in fact offended by no-citation rules. For present 

purposes, I merely want to note that one reason I have changed my mind 

about Rule 32.1 is that I have come to realize that the proposed rule is more 

important than I originally thought. 

Mostly, though, my position on Rule 32.1 has changed as I have been 

required to look closely at the merits of the proposal. In my capacity as 

Reporter, I had to read every word of every one of the 500-plus comments 

on Rule 32.1. I had to summarize and evaluate those comments for 

members of the Advisory Committee and then again for members of the 

Standing Committee. I had to work with the FJC and AO on the design of 

their studies. And I had to sit through many meetings—formal and 

informal—at which Rule 32.1 was discussed. The more that I have heard 

and thought about Rule 32.1, the more that I have become convinced that 

Rule 32.1 is correct on the merits. Four factors have been particularly 

persuasive for me: (1) my starting point; (2) the weakness and 

inconsistency of the arguments against Rule 32.1; (3) the FJC’s and AO’s 

studies; and (4) the fact that the worst-case scenario feared by opponents of 

Rule 32.1 is not, in my view, terribly frightening. I will explain each of 

these factors in turn. 

1. Starting Points 

One reason why Rule 32.1 is so controversial is that supporters and 

opponents of the proposed rule start from different first principles. They 

have different views of what is natural or normal and thus different views 

about who has “the burden of proof.” 

Those who favor Rule 32.1 start from the premise that being able to cite 

things is the norm. Supporters have different reasons for this belief. For 

some, it may reflect the conviction that government officials (including 

judges) generally cannot bar citizens from speaking about the government. 

For others, it may reflect a conviction about the autonomy of attorneys or 

about the importance of transparency or about some other civic value. But 

the bottom line is that, for supporters of Rule 32.1, citation is the norm, and 

it is the opponents who have the burden of proof—who must come up with 

compelling reasons to justify no-citation rules. 

The world looks different to those who oppose Rule 32.1. They start 

from the premise that a court of appeals should be free to handle its judicial 

business as it sees fit unless there are compelling reasons to deny it that 

freedom. It is not the job of the rules committees to interfere with the 

184. See Schiltz, supra note 5. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 69 

decisions that the circuits make about how to get their work done. This is 

especially important, according to opponents, in light of the substantial 

differences among the circuits and the fact that all circuits are struggling to 

handle growing caseloads with diminishing resources. For opponents, then, 

it is the supporters of Rule 32.1 who have the burden of proof—who must 

come up with compelling reasons to justify depriving courts of their 

autonomy. 

Where one ends up regarding Rule 32.1 depends to a large extent on 

where one starts. As I have already suggested, my starting point is the same 

as the starting point of the supporters of Rule 32.1: I believe that citation is 

the norm, and that the burden is on opponents of Rule 32.1 to provide 

compelling reasons why circuits should be able to bar parties from citing 

unpublished opinions. 

2. Weakness of Arguments Against Rule 32.1 

The comments against Rule 32.1, although many in number, failed to 

meet this burden of proof. 

Some of the arguments made in the comments were plainly incorrect. 

For example, the argument that Rule 32.1 exceeds the authority granted by 

28 U.S.C. § 2072185 has several problems, not the least of which is that the 

no-citation rules that Rule 32.1 seeks to abolish are themselves promulgated 

under Rule 47(a), which gives each court of appeals authority to “make and 

amend rules governing its practice.”186 It is hard to imagine how a court of 

appeals could have power under Rule 47(a) to use its local rules to bar 

citation, but the Supreme Court could not have power under § 2072 to use 

the Appellate Rules to permit citation. If a no-citation rule is a rule of 

“practice” for purposes of Rule 47(a), then surely Rule 32.1 is a rule of 

“practice” for purposes of § 2072. 

Other arguments made against Rule 32.1 were inconsistent. To cite one 

example, opponents argued both (a) that unpublished opinions contain 

nothing of value and (b) that, if unpublished opinions could be cited, 

attorneys would have a professional obligation to research them, briefs 

would be full of citations to them, district courts would feel bound to follow 

them, and circuit courts would have to distinguish and explain them. To 

cite another, opponents argued both (a) that unpublished opinions often do 

not accurately describe the reasoning behind a decision and (b) that it is 

important that courts be able to continue to issue unpublished opinions 

because the parties are entitled to know the reasoning behind a decision. 

Opponents walked fine lines in trying to reconcile these and other tensions 

within their arguments, but I do not think that they always succeeded. 

Still other arguments against Rule 32.1 suffered from gaps in their 

reasoning. Commentators often stated—with little or no elaboration—that, 

if Rule 32.1 was approved, x would occur, and then devoted paragraphs to 

185. See Walker Letter, supra note 55, at 5-6. 

 186. Fed. R. App. P. 47(a). 
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70 FORDHAM LAW REVIEW [Vol. 74 

describing how awful x would be. What was often missing was a careful 

explanation of why Rule 32.1 would necessarily lead to x in the first place. 

Take, for example, the following “talking point,” which appeared in almost 

identical form in dozens of letters: 

If unpublished dispositions could be cited, lawyers would have no choice 

but to treat them as a significant source of authority. [Why?] As a matter 

of prudence, and probably professional ethics, practitioners could not 

ignore relevant opinions decided by the very circuit court before which 

they are now litigating. [Why?] Even if courts did not regard 

unpublished dispositions as controlling, lawyers would still be obliged to 

afford them significant weight in practicing before circuit courts. 

[Why?]187

This paragraph basically repeats the same assertion three times. The 

assertion may very well be true, but repetition does not make it so. 

Many of the arguments against Rule 32.1 were exaggerated. For 

example, I was not impressed with the argument that judges would be 

obliged to read every unpublished opinion cited in every brief—and, 

because those opinions are so cryptic, judges would have to call up the 

records and read the briefs to try to figure out what they really held. I 

clerked on two federal appellate courts, and I know that judges and their 

law clerks rarely read every precedential source that is cited in a brief, much 

less every non-precedential authority. A ten-case string cite is a ten-case 

string cite, and no one reads all ten cases—whether published or not—

unless there is good reason to do so. Judges and their law clerks have 

always used discretion in doing research, and they will continue to use 

discretion if Rule 32.1 is approved. 

What most struck me about the arguments against Rule 32.1, though, is 

that they sometimes made a better normative case for Rule 32.1 than the 

arguments of the rule’s supporters. Take, for example, the following 

argument, made in a letter signed by several judges: 

[Unpublished orders will be] thrown back in our faces . . . no matter how 

often we state that unpublished orders though citable (if the proposed rule 

is adopted) are not precedents. For if a lawyer states in its brief that in our 

unpublished opinion in A v. B we said X and in C v. D we said Y and in 

this case the other side wants us to say Z, we can hardly reply that when 

we don’t publish we say what we please and take no responsibility. We 

will have a moral duty to explain, distinguish, reaffirm, overrule, etc. any 

unpublished order brought to our attention by counsel. Citability would 

upgrade case-specific orders that this circuit has intentionally confined to 

the law of that particular case to de facto precedents that we must 

address.188

This is a rather striking argument. The judges seem to be asserting not 

only that they have the right to treat similarly situated litigants differently, 

 187. Liebeler Letter, supra note 4, app. at 1. 

 188. Coffey Letter, supra note 63, at 1. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 71 

but that they have the right not to be made to feel guilty about it. Normally, 

if a person is acting wrongly, and he feels guilty when his actions are called 

to his attention, the solution is for him to stop acting wrongly. Yet these 

judges seem to believe that, if they fail to provide equal justice, and they 

might feel guilty if their failure is pointed out to them, the solution is to 

prohibit parties from “throw[ing] back in [their] faces”—otherwise known 

as “citing”—their inconsistent actions. This argument implies that 

“say[ing] what we please and tak[ing] no responsibility” is exactly what 

judges want to do in unpublished opinions. It also implies that the real 

objection to Rule 32.1 is not that it would prevent courts from continuing to 

issue unpublished opinions that are sloppily drafted by clerks and all of that, 

but that it would make judges take responsibility for their unpublished 

opinions. And that, it seems to me, is one of the best arguments that can be 

made for Rule 32.1. 

3. FJC and AO Studies 

Any lingering doubts that I had about the merits of Rule 32.1 were put to 

rest by the FJC’s and AO’s studies. As I described above, judges who had 

experience with the citation of unpublished opinions—that is, judges in the 

six discouraging and three permissive circuits—overwhelmingly said that 

permitting such citation does not cause judges to spend substantially more 

time drafting unpublished opinions189 and does not make their work 

substantially more difficult.190 Only the judges in the four restrictive 

circuits—that is, the judges who have no actual experience with the citation 

of unpublished opinions—predicted doom, but those judges failed to cite 

any reason why the experience of their circuits should differ from the 

experience of the other nine circuits.191 Lawyers, too, overwhelmingly 

supported Rule 32.1192 and rejected the notion that the rule would be 

burdensome.193 And the AO found no evidence that liberalizing a citation 

rule affects median case disposition times or the frequency of summary 

dispositions.194

4. The Worst-Case Scenario 

One final consideration persuaded me that Rule 32.1 should be approved. 

Opponents of Rule 32.1 predict that, if unpublished opinions can be cited, 

judges will devote more time to writing them, so that they cannot be 

misused or misunderstood. Opponents claim that judges will compensate 

for this increased burden by issuing no opinions in an increasing number of 

189. See Reagan et al., supra note 8, at 4-5, 31 tbl.C; id. at 6, 33 tbl.E; id. at 8-9, 36 tbl.H; 

id. at 12, 42 tbl.N. 

190. See id. at 10, 38 tbl.J; id. at 12-13, 43 tbl.O. 

191. See id. at 9-10, app. A. 

192. See id. at 18, 50 tbl.V. 

193. See id. at 17, 49 tbl.U. 

194. See Rabiej Memorandum, supra note 9, at 1-2. 
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72 FORDHAM LAW REVIEW [Vol. 74 

cases. In those cases, parties will not receive any explanation for the 

appellate court’s decision nor even any assurance that their arguments were 

heard and taken seriously. This will leave parties feeling cheated and erode 

their confidence in the judicial system. In the eyes of many of Rule 32.1’s 

opponents, this increase in one-line judgment orders is the most serious 

harm that Rule 32.1 will inflict. 

Putting aside the fact that the available evidence suggests that these 

predictions are wrong,195 I certainly agree that an increase in one-line 

judgment orders would be bad for the judicial system. But I am not sure 

that it would be as devastating as Rule 32.1’s opponents suggest. Consider 

two of the other arguments that have been made against Rule 32.1: 

First, many of Rule 32.1’s opponents stress the poor quality of 

unpublished opinions. They tell us that the opinions are drafted hurriedly 

by law clerks—often by cutting and pasting bench memos. They tell us that 

judges spend little time reviewing the language of the opinions, and are 

concerned only about the result. They tell us that the opinions may not 

accurately reflect the views of even a single judge. They tell us that the 

opinions do not adequately describe the facts and are not precise in the way 

that they describe the law. In a word, the quality of the opinions is lousy. 

Second, many of Rule 32.1’s opponents complain that the world is 

already awash in too much law. There are too many decisions to read. It is 

too expensive to do legal research. There are too many ambiguities and 

conflicts in the law because too many courts have said the same things too 

many times—inevitably in slightly different ways. Unpublished opinions 

already contribute to this problem, because, even in jurisdictions in which 

they cannot be cited, they are regularly read. 

If one accepts these two arguments, then would not the ideal solution be 

to get rid of unpublished opinions altogether? Would it not be good if Rule 

32.1 resulted in judges issuing (a) full, published, citable, precedential 

decisions in cases that warrant them and (b) one-line (or perhaps oneparagraph or one-page) orders in cases that do not? Would not a world of 

fewer and better opinions be preferable to a world of more and worse 

opinions? One leading opponent of Rule 32.1 likened unpublished opinions 

to “sausage [that is] not safe for human consumption.”196 Isn’t the best way 

to deal with such “sausage” to stop making it? 

The more I thought about the comments on Rule 32.1, the more I was 

struck by how strange the current system is. Unpublished opinions are the 

crazy uncle in the attic of the federal judiciary, and no-citation rules are the 

whispered instructions to party guests not to hurt the hosts’ feelings by 

mentioning that uncle. One commentator described the current system 

well: 

 No one knows what to do with unpublished circuit decisions. Even in 

circuits that allow citation, such as the Tenth Circuit, they represent a 

195. See id. at 2. 

 196. Kozinski Letter, supra note 52, at 2. 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 73 

limbo of pseudo-precedent that is not binding but yet has more effect than 

merely legal advocacy. The respect they are given varies from near zero 

to that given binding precedent; they may be treated like a law review 

article, a Federal Supplement decision from another circuit, or a published 

opinion of the authoring court itself. Anyone who states that lawyers and 

judges have a common understanding of how to handle unpublished 

decisions is either misinformed or less than candid.197

Right now, federal judges handle the problem of this “limbo of pseudoprecedent” by ignoring it—by averting their gaze. If Rule 32.1 makes it 

impossible for judges to avert their gaze—and, as a result, judges stop 

issuing lousy unpublished opinions in favor of either good published 

opinions or one-line orders—I would regard that, at least in some respects, 

as an improvement over the current system. 

To be clear, I am not advocating for an increase in one-line dispositions. 

I agree completely that, in an ideal world, no party would ever receive a 

one-line disposition. If Rule 32.1 indeed causes an increase in one-line 

dispositions, the judicial system will be harmed. But the issue is one of 

relative harms—of how the harm that might be caused by an increase 

(possibly quite modest) in one-line dispositions compares to the harm that is 

now being caused by no-citation rules. 

This is an extremely difficult question, but it occurs to me that a few facts 

are at least relevant to the calculus. First, the judicial system already issues 

millions of one-word decisions, from a trial judge’s “sustained” in response 

to an objection at trial to the Supreme Court’s “denied” in response to a 

petition for a writ of certiorari. People may not like it, but they seem to live 

with it. Second, providing reasons for every appellate decision may no 

longer be possible, given that the resources of the courts are not keeping 

pace with rising caseloads. Congress cannot give courts fewer resources to 

handle more cases and expect nothing to change. American taxpayers—

through their elected representatives—have given no indication that 

supplying a reasoned opinion to every litigant in every case is a priority for 

them. Finally, given what we have been told about unpublished opinions, I 

wonder just how preferable they are to one-line dispositions. Is an 

inaccurate explanation really better than no explanation at all? 

CONCLUSION

For all of these reasons, I have become convinced that Rule 32.1 should 

be approved. What, then, of the institutional considerations that initially 

caused me to oppose Rule 32.1? What of my concern that approving Rule 

32.1 over the opposition of so many judges will harm the credibility of the 

REA process? The answer, I think, is that the REA process has credibility 

not only because it strives to avoid controversy, but, even more importantly, 

 197. Letter from Bennett Evan Cooper, Steptoe & Johnson LLP, to Peter G. McCabe, 

Sec’y, Comm. on Rules of Practice & Procedure 3 (Feb. 13, 2004), available at

http://www.secretjustice.org/pdf_files/Comments/03-AP-432.pdf (Comment 03-AP-432). 
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74 FORDHAM LAW REVIEW [Vol. 74 

because it strives to be right. The merits matter more, and politics matter 

less, in the REA process than in the typical legislative or administrative 

process. When the case in favor of Rule 32.1 is so much stronger than the 

case against it, Rule 32.1’s defeat would harm the credibility of the REA 

process far more than its approval. 

 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 75 

APPENDIX: PROPOSED RULE 32.1 AND ADVISORY COMMITTEE NOTE 

PUBLISHED FOR COMMENT IN AUGUST 2003198

Rule 32.1. Citation of Judicial Dispositions 

(a) Citation Permitted. No prohibition or restriction may be imposed 

upon the citation of judicial opinions, orders, judgments, or other written 

dispositions that have been designated as “unpublished,” “not for 

publication,” “non-precedential,” “not precedent,” or the like, unless that 

prohibition or restriction is generally imposed upon the citation of all 

judicial opinions, orders, judgments, or other written dispositions. 

(b) Copies Required. A party who cites a judicial opinion, order, 

judgment, or other written disposition that is not available in a publicly 

accessible electronic database must file and serve a copy of that opinion, 

order, judgment, or other written disposition with the brief or other paper in 

which it is cited. 

Committee Note 

Rule 32.1 is a new rule addressing the citation of judicial opinions, 

orders, judgments, or other written dispositions that have been designated 

as “unpublished,” “not for publication,” “non-precedential,” “not 

precedent,” or the like. This Note will refer to these dispositions 

collectively as “unpublished” opinions. This is a term of art that, while not 

always literally true (as many “unpublished” opinions are in fact published), 

is commonly understood to refer to the entire group of judicial dispositions 

addressed by Rule 32.1. 

The citation of “unpublished” opinions is an important issue. The 

thirteen courts of appeals have cumulatively issued tens of thousands of 

“unpublished” opinions, and about 80% of the opinions issued by the courts 

of appeals in recent years have been designated as “unpublished.” 

Administrative Office of the United States Courts, Judicial Business of the 

United States Courts 2001, tbl. S-3 (2001). Although the courts of appeals 

differ somewhat in their treatment of “unpublished” opinions, most agree 

that an “unpublished” opinion of a circuit does not bind panels of that 

circuit or district courts within that circuit (or any other court). 

State courts have also issued countless “unpublished” opinions in recent 

years. And, again, although state courts differ in their treatment of 

“unpublished” opinions, they generally agree that “unpublished” opinions 

do not establish precedent that is binding upon the courts of the state (or 

any other court). 

198. Comm. on Rules of Practice & Procedure of the Judicial Conference of the U.S., 

Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, 

Civil, and Criminal Procedure 30-39 (Aug. 2003). 
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76 FORDHAM LAW REVIEW [Vol. 74 

Rule 32.1 is extremely limited. It takes no position on whether refusing 

to treat an “unpublished” opinion as binding precedent is constitutional. 

See Symbol Tech., Inc. v. Lemelson Med., Educ. & Research Found., 277 

F.3d 1361, 1366-68 (Fed. Cir. 2002); Hart v. Massanari, 266 F.3d 1155, 

1159-80 (9th Cir. 2001); Williams v. Dallas Area Rapid Transit, 256 F.3d 

260 (5th Cir. 2001) (Smith, J., dissenting from denial of reh’g en banc); 

Anastasoff v. United States, 223 F.3d 898, 899-905, vacated as moot on 

reh’g en banc 235 F.3d 1054 (8th Cir. 2000). It does not require any court 

to issue an “unpublished” opinion or forbid any court from doing so. It 

does not dictate the circumstances under which a court may choose to 

designate an opinion as “unpublished” or specify the procedure that a court 

must follow in making that decision. It says nothing about what effect a 

court must give to one of its “unpublished” opinions or to the 

“unpublished” opinions of another court. The one and only issue addressed 

by Rule 32.1 is the citation of judicial dispositions that have been 

designated as “unpublished” or “non-precedential” by a federal or state 

court—whether or not those dispositions have been published in some way 

or are precedential in some sense. 

Subdivision (a). Every court of appeals has allowed “unpublished” 

opinions to be cited in some circumstances, such as to support a claim of 

claim preclusion, issue preclusion, law of the case, double jeopardy, 

sanctionable conduct, abuse of the writ, notice, or entitlement to attorney’s 

fees. Not all of the circuits have specifically mentioned all of these claims 

in their local rules, but it does not appear that any circuit has ever 

sanctioned an attorney for citing an “unpublished” opinion under these 

circumstances. 

By contrast, the circuits have differed dramatically with respect to the 

restrictions that they have placed upon the citation of “unpublished” 

opinions for their persuasive value. An opinion cited for its “persuasive 

value” is cited not because it is binding on the court or because it is relevant 

under a doctrine such as claim preclusion. Rather, it is cited because the 

party hopes that it will influence the court as, say, a law review article 

might—that is, simply by virtue of the thoroughness of its research or the 

persuasiveness of its reasoning. 

Some circuits have freely permitted the citation of “unpublished” 

opinions for their persuasive value, some circuits have disfavored such 

citation but permitted it in limited circumstances, and some circuits have 

not permitted such citation under any circumstances. These conflicting 

rules have created a hardship for practitioners, especially those who practice 

in more than one circuit. Rule 32.1(a) is intended to replace these 

conflicting practices with one uniform rule. 

Under Rule 32.1(a), a court of appeals may not prohibit a party from 

citing an “unpublished” opinion for its persuasive value or for any other 

reason. In addition, under Rule 32.1(a), a court of appeals may not place 

any restriction upon the citation of “unpublished” opinions, unless that 

restriction is generally imposed upon the citation of all judicial opinions—
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2005] THE CITATION OF UNPUBLISHED OPINIONS 77 

“published” and “unpublished.” Courts are thus prevented from 

undermining Rule 32.1(a) by imposing restrictions only upon the citation of 

“unpublished” opinions (such as a rule permitting citation of “unpublished” 

opinions only when no “published” opinion addresses the same issue or a 

rule requiring attorneys to provide 30-days notice of their intent to cite an 

“unpublished” opinion). At the same time, Rule 32.1(a) does not prevent 

courts from imposing restrictions as to form upon the citation of all judicial 

opinions (such as a rule requiring that case names appear in italics or a rule 

requiring parties to follow The Bluebook in citing judicial opinions). 

It is difficult to justify prohibiting or restricting the citation of 

“unpublished” opinions. Parties have long been able to cite in the courts of 

appeals an infinite variety of sources solely for their persuasive value. 

These sources include the opinions of federal district courts, state courts, 

and foreign jurisdictions, law review articles, treatises, newspaper columns, 

Shakespearian sonnets, and advertising jingles. No court of appeals places 

any restriction on the citation of these sources (other than restrictions that 

apply generally to all citations, such as requirements relating to type styles). 

Parties are free to cite them for their persuasive value, and judges are free to 

decide whether or not to be persuaded. 

There is no compelling reason to treat “unpublished” opinions 

differently. It is difficult to justify a system under which the “unpublished” 

opinions of the D.C. Circuit can be cited to the Seventh Circuit, but the 

“unpublished” opinions of the Seventh Circuit cannot be cited to the 

Seventh Circuit. D.C. Cir. R. 28(c)(1)(B); 7th Cir. R. 53(b)(2)(iv) & (e). 

And, more broadly, it is difficult to justify a system that permits parties to 

bring to a court’s attention virtually every written or spoken word in 

existence except those contained in the court’s own “unpublished” opinions. 

Some have argued that permitting citation of “unpublished” opinions 

would lead judges to spend more time on them, defeating their purpose. 

This argument would have great force if Rule 32.1(a) required a court of 

appeals to treat all of its opinions as precedent that binds all panels of the 

court and all district courts within the circuit. The process of drafting a 

precedential opinion is much more time consuming than the process of 

drafting an opinion that serves only to provide the parties with a basic 

explanation of the reasons for the decision. As noted, however, Rule 

32.1(a) does not require a court of appeals to treat its “unpublished” 

opinions as binding precedent. Nor does the rule require a court of appeals 

to increase the length or formality of any “unpublished” opinions that it 

issues. 

It should also be noted, in response to the concern that permitting citation 

of “unpublished” opinions will increase the time that judges devote to 

writing them, that “unpublished” opinions are already widely available to 

the public, and soon every court of appeals will be required by law to post 

all of its decisions—including “unpublished” decisions—on its website. 

See E-Government Act of 2002, Pub. L. 107-347, § 205(a)(5), 116 Stat. 

2899, 2913. Moreover, “unpublished” opinions are often discussed in the 
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78 FORDHAM LAW REVIEW [Vol. 74 

media and not infrequently reviewed by the United States Supreme Court. 

See, e.g., Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 

U.S. 826 (2002) (reversing “unpublished” decision of Federal Circuit); 

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (reversing “unpublished” 

decision of Second Circuit). If this widespread scrutiny does not deprive 

courts of the benefits of “unpublished” opinions, it is difficult to believe 

that permitting a court’s “unpublished” opinions to be cited to the court 

itself will have that effect. The majority of the courts of appeals already 

permit their own “unpublished” opinions to be cited for their persuasive 

value, and “the sky has not fallen in those circuits.” Stephen R. Barnett, 

From Anastasoff to Hart to West’s Federal Appendix: The Ground Shifts 

Under No-Citation Rules, 4 J. App. Prac. & Process 1, 20 (2002). 

In the past, some have also argued that, without no-citation rules, large 

institutional litigants (such as the Department of Justice) who can afford to 

collect and organize “unpublished” opinions would have an unfair 

advantage. Whatever force this argument may once have had, that force has 

been greatly diminished by the widespread availability of “unpublished” 

opinions on Westlaw and Lexis, on free Internet sites, and now in the 

Federal Appendix. In almost all of the circuits, “unpublished” opinions are 

as readily available as “published” opinions. Barring citation to 

“unpublished” opinions is no longer necessary to level the playing field. 

Unlike many of the local rules of the courts of appeals, Rule 32.1(a) does 

not provide that citing “unpublished” opinions is “disfavored” or limited to 

particular circumstances (such as when no “published” opinion adequately 

addresses an issue). Again, it is difficult to understand why “unpublished” 

opinions should be subject to restrictions that do not apply to other sources. 

Moreover, given that citing an “unpublished” opinion is usually tantamount 

to admitting that no “published” opinion supports a contention, parties 

already have an incentive not to cite “unpublished” opinions. Not 

surprisingly, those courts that have liberally permitted the citation of 

“unpublished” opinions have not been overwhelmed with such citations. 

Finally, restricting the citation of “unpublished” opinions may spawn 

satellite litigation over whether a party’s citation of a particular 

“unpublished” opinion was appropriate. This satellite litigation would 

serve little purpose, other than further to burden the already overburdened 

courts of appeals. 

Rule 32.1(a) will further the administration of justice by expanding the 

sources of insight and information that can be brought to the attention of 

judges and making the entire process more transparent to attorneys, parties, 

and the general public. At the same time, Rule 32.1(a) will relieve 

attorneys of several hardships. Attorneys will no longer have to pick 

through the conflicting no-citation rules of the circuits in which they 

practice, nor worry about being sanctioned or accused of unethical conduct 

for improperly citing an “unpublished” opinion. See Hart, 266 F.3d at 1159 

(attorney ordered to show cause why he should not be disciplined for 

violating no-citation rule); ABA Comm. on Ethics and Prof’l 
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2005] THE CITATION OF UNPUBLISHED OPINIONS 79 

Responsibility, Formal Op. 94-386R (1995) (“It is ethically improper for a 

lawyer to cite to a court an ‘unpublished’ opinion of that court or of another 

court where the forum court has a specific rule prohibiting any reference in 

briefs to [‘unpublished’ opinions].”). In addition, attorneys will no longer 

be barred from bringing to the court’s attention information that might help 

their client’s cause; whether or not this violates the First Amendment (as 

some have argued), it is a regrettable position in which to put attorneys. 

Finally, game-playing should be reduced, as attorneys who in the past might 

have been tempted to find a way to hint to a court that it has addressed an 

issue in an “unpublished” opinion can now directly bring that 

“unpublished” opinion to the court’s attention, and the court can do 

whatever it wishes with that opinion. 

Subdivision (b). Under Rule 32.1(b), a party who cites an 

“unpublished” opinion must provide a copy of that opinion to the court and 

to the other parties, unless the “unpublished” opinion is available in a 

publicly accessible electronic database—such as in Westlaw or on a court’s 

website. A party who is required under Rule 32.1(b) to provide a copy of 

an “unpublished” opinion must file and serve the copy with the brief or 

other paper in which the opinion is cited. 

It should be noted that, under Rule 32.1(a), a court of appeals may not 

require parties to file or serve copies of all of the “unpublished” opinions 

cited in their briefs or other papers (unless the court generally requires 

parties to file or serve copies of all of the judicial opinions that they cite). 

“Unpublished” opinions are widely available on free websites (such as 

those maintained by federal and state courts), on commercial websites (such 

as those maintained by Westlaw and Lexis), and even in published 

compilations (such as the Federal Appendix). Given the widespread 

availability of “unpublished” opinions, parties should be required to file and 

serve copies of such opinions only in the circumstances described in Rule 

32.1(b).