The Dog That Did Not Bark: No-CitationRules, Judicial Conference Rulemaking,and Federal Public Defenders

I. IntroductionA. The FRAP 32.1 ProceedingThe battle over "FRAP 32.1," the proposed federal rule of appellate procedure2 that would bar federal courts from prohibiting or restricting citation of their unpublished3 opinions,4 has become an epic of federal court rulemaking-in the words of Professor Patrick Schiltz, "the most controversial issue in the history of the judicial rule-making process."5 The public-comment phase of the Rule 32.1 rulemaking proceeding, conducted by the Appellate Rules Advisory Committee of the United States Judicial Conference (Advisory Committee), took place from August 2003 to February 2004.6 The result was an extraordinary 513 written comments, overwhelmingly opposed to the proposed rule.7 This landslide notwithstanding, the Advisory Committee, at its meeting of April 2004, voted six to one to approve Rule 32.1.8The proposed rule then went before the Judicial Conference's Standing Committee on Rules and Practice ("Standing Committee"). That committee, at its meeting of June 2004, sent the proposed rule back to the Advisory Committee for further study.9 This action was explained as reflecting not the Standing Committee's judgment on the merits of the proposal, but rather the committee's concern about "the strong opposition to the proposed rule expressed by many commentators, especially federal judges," and its desire to do everything feasible to address the opponents' claims.10 It was thought that some of those claims could be tested empirically. Because nine federal circuits now permit citation11 of their unpublished opinions (the "citable" circuits), while the other four circuits do not (the "no-citation" circuits), it was suggested that research could focus on the citable circuits to see whether adverse consequences predicted to result from citability have in fact come to pass where citation is allowed.12The Advisory Committee accordingly set in motion a project of empirical research, conducted in tandem by the Federal Judicial Center (FJC) and the Administrative Office of the United States Courts (AO).13 The call for further study might have been a face-saving surrender; as one observer thought, "[T]he political forces were so strong that it was decided, 'Well, let's hold it up and let's do a study. '"14 Or the research, however motivated, might have produced an inconclusive result, as research often does.15 Rather amazingly, neither outcome ensued. The research by the AO and the FJC was not only sound and thorough in design (if needlessly complex),16 but was also decisive in its conclusions and was even completed promptly, in time for consideration by the Advisory Committee in April, and the Standing Committee in June, of 2005. The research results are summarized in Professor Schiltz's Article in this Symposium,17 and also briefly in this Article.18 Suffice it to say here that what might have been a strategic evasion, or at best an inconclusive foray into the academic wilds of survey research, proved to be a turning point in the FRAP 32.1 proceeding, and something of a triumph of empirical research as applied to an issue of public policy.Fortified by the research results, the Advisory Committee in April 2005 once more approved the proposed rule, seven to two.19 The weary rule then trudged back to the Standing Committee for that committee's meeting of June 2005. At that session the Standing Committee, after hearing an extensive account of the FJC and AO research,20 approved Rule 32.1 unanimously.21 The proposed rule then went before the Judicial Conference at that body's meeting of September 20, 2005. The Judicial Conference approved the rule, though adding the condition that the rule would apply "only to judicial dispositions entered on or after January 1, 2007."22 Rule 32.1 was in a package of rule amendments submitted to the Supreme Court by the Judicial Conference on November 29, 2005. If the rule change receives approval by the Supreme Court and acquiescence by Congress, it will go into effect December 1,2006. …