Parades of Horribles, Circles of Hell: Ethical Dimensions of the Publication Controversy

[A]bandon every hope, you who enter.Dante Alighieri, Inferno (Canto 111:9)'Introduction: Parades of HorriblesRhetorical recourse to a "parade of horribles" need not have a pejorative connotation. In policy debates, for example, opponents and proponents of a new rule or regulation typically rely on predictions of the adverse effects of accepting or rejecting, respectively, the proposal. Sometimes the benefits of a particular course of action-whether to change or to keep a law-will outweigh the realistically identified burdens. Nevertheless, in the controversy surrounding proposed Federal Rule of Appellate Procedure 32.1 (Rule 32.1 )2 and publication practices generally, many suspect that the dueling parades of horribles are exaggerated. Indeed, as Professor Stephen Barnett points out, if Rule 32.1 would be as disastrous as its opponents claim, then the majority of federal circuits would be rushing to prohibit citation of unpublished opinions in their own rules.3 Conversely, if prohibiting citation of unpublished opinions was as problematic as the proponents of Rule 32.1 claim, then the four circuits that prohibit citation would embrace the salvation offered by Rule 32.1. Because both "systems" of citation are currently in place, both sides in the Rule 32.1 debate can claim that the other side has no evidence to support its predictive parade of horribles.As to the broader but related issue of whether current publication practices are pragmatically necessary or extremely troubling, both sides in that debate also enlist parades of horribles (that are likewise susceptible to charges of exaggeration).4 Significantly, supporters of such practices as unpublication and depublication predict a dire situation if it were otherwise, while critics seek to disclose the hidden parade of horribles that now exists. Finally, when defenders of no-citation rules and the practice of writing unpublished opinions respond, they unwittingly create a parade of horribles by virtue of their justificatory revelations. I have mentioned lots of parades here, so let me explain.The first parade of horribles, offered in support of Rule 32.1, includes (i) the hardships on attorneys who have to figure out the conflicting citation rules in each circuit; (ii) First Amendment and prior restraint concerns ("nocitation rules ... are profoundly antithetical to American values"5); (iii) the dissonance between no-citation rules and the fact that unpublished opinions are available, insightful, used by attorneys, and cited by judges; (iv) arbitrariness and injustice because similar cases may not be treated alike; (v) lack of judicial accountability and loss of public confidence in the judiciary; and (vi) the appearance-perhaps reality-that wealthy litigants get published opinions while the poor do not.6 If this parade appears to you to be exaggerated, then-with apologies to comedian Jeff Foxworthy-you maybe an opponent of Rule 32.1.7The second parade of horribles, offered by opponents of Rule 32.1, is even bigger, reflecting both the benign fact that opposition to a controversial proposal is traditionally more likely than support8 and the unseemly fact that the opposition to Rule 32.1 was an organized campaign-repetitive, even identical, comments were sent to the Committee, and about ninety percent of the more than five hundred comments received were opposed to Rule 32.1.9 This parade of horribles includes the following predictions: (i) judges will be misled by illegitimate citation of unpublished opinions; (ii) judges will be overwhelmed by the duty to write better unpublished opinions and consequently have less time to write published opinions, thereby rendering the (actual) law less clear, leading to more litigation and even greater demands on judges' time, all of which will result in more one-line dispositions; (iii) the body of case law will be (somewhat contradictorily, given the previous prediction) vastly increased, imposing a hardship on attorneys; and (iv) parties will have to wait longer for judicial resolution, which costs money and discriminates against the poor. …