Much Ado About the Tip of an Iceberg

I was delighted to be invited to attend this Washington and Lee School of Law Symposium and to contribute the views I expressed there to the published record of the symposium. To one who has spent the better part of a career studying the nonprecedent regimes of the United States circuit courts,2 it is especially gratifying that the issue finally is beginning to attract attention beyond the narrow cadre of federal court junkies who for thirty years have constituted "the usual suspects."3The occasion for the resurgence of interest in the topic is the decisions in Hart v. Massanarf and Anastasoff v. United States* and the promulgation of Proposed Federal Rule of Appellate Procedure 32.1 (a) which provides: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upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or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.6Proposed Rule 32.1, designed to eliminate one of the most egregious ingredients of the nonprecedent program, proved quite controversial and produced an unprecedented number of comments. Because the rule is quite limited, the controversy is somewhat surprising. In the words of the Reporter,It [the rule] takes no position on whether refusing to treat an "unpublished" opinion as binding precedent is constitutional.... It does not require any court to issue an "unpublished" opinion or forbid any court from doing so. It does not dictate the circumstances under which a court may choose to designate an opinion as "unpublished" or specify the procedure that a court must follow in making that decision. It says nothing about what effect a court must give to one of its "unpublished" opinions or to the "unpublished" opinions of another court. The one and only issue addressed by Rule 32.1 is the citation of judicial opinions that have been designated as "unpublished."7From the historical perspective,8 the uproar over the rule is even more curious, for the rule would affect only noncitation rules (and only in four of the thirteen circuits), and those rules represent merely the tip of a much larger and more dangerous iceberg-the two-track system of justice in our federal appellate courts.From 1890 (the year of their establishment) until the mid-1970s, the circuit courts handled their caseload by what we can term the traditional common law appellate model: the judges heard oral arguments, conferred with their colleagues on the panel, and sometimes with the help of a single clerk, wrote fully reasoned, precedential, published opinions in nearly all cases.Beginning in the 1970s, in response to a geometrically increasing caseload, the judges began to abandon that model in favor of the two-track system of appellate justice that prevails today. Now, the courts apply the traditional model to about twenty percent of the caseload. The judges decide the remainder without oral argument, without the traditional panel conference, and without a signed,9 published, and precedential opinion.10 Moreover, the judges put relatively little effort into the vast majority of their caseload while lavishing attention on the few most worthy cases. Instead most of the work on "routine" cases is done by a large corps of staffattorneys, typically recent law graduates, assigned to the court at large rather than any particular judge.11 Typically, the judges' input amounts to a "conference," lasting a few hours, in which a panel approves the staff attorneys' draft opinions in as many as fifty cases.Finally, the judges often do not make the crucial justice-rationing decisions that determine which cases will fall on which track. Usually clerks and central staff screen the appeals to determine which cases will fall into the favored minority destined to receive traditional appellate process and which will comprise the vast majority to be decided by the truncated process. …