Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1 (2010)

I. INTRODUCTION Any significant change in the Federal Rules of Appellate Procedure is likely to have a ripple effect throughout the local roles of the federal courts of appeals. This is especially true of a role as fundamentally important and widely debated as Federal Rule of Appellate Procedure 32.1, (1) which was created to permit citation of unpublished opinions issued on or after January 1, 2007. (2) It was intended to create uniformity regarding citation of unpublished opinions in the federal circuits. It has failed to do so, however, in two respects. First, by inserting a provision applying the rule only prospectively, (3) the Judicial Conference undercut the very uniformity that the representatives of the bench and bar involved in the rulemaking process had intended to create. (4) Second, as the comment to the rule makes clear, the rule takes no position regarding the precedential value of unpublished opinions, (50 which leaves unresolved the most critical (6) and least well-justified aspect of the practice of issuing unpublished opinions. (7) In the wake of Rule 32.1, some circuits have changed their local rules to comply with the new requirements. Others have gone beyond the requirements of Rule 32.1 to expand citation even further, by, for example, removing the prospectivity limitation. (8) In addition, circuits continue to answer the question of precedential status of unpublished opinions left open by Rule 32.1 in various ways. (9) The local rules regarding publication, citation, and precedent will be examined in this article to demonstrate the lack of uniformity in the treatment of unpublished opinions that continues to plague the federal courts. This article proposes ending this unjustified discrimination between the decisions of the federal courts of appeals, removal of the prospectivity requirement, and adoption of an amendment to Rule 32.1 granting precedential status to all opinions. II. PUBLICATION, CITATION, PRECEDENT, AND LOCAL RULES Publication, citation, and precedent are three different aspects of common law opinions. They are related, but not necessarily dependent upon one another. The degree to which common law opinions have possessed these characteristics has varied throughout the history of the common law. Early decisions were rarely published, and were precedent only in the aggregate, but were always citable to the court. (10) Later, as decisions became more commonly published, the power of precedent increased, and, of course, litigants remained free to urge upon the court an action it had previously taken by citing past decisions. (11) This trend of increasingly common publication and increasingly strong precedent was a feature of both colonial America and England in that period. (12) By the end of the nineteenth century, the entrepreneur John West had created a system of comprehensive publication of all federal appellate opinions, an effort that was of great interest to the bench and bar. (13) While other, less comprehensive, reporters and even summaries of the law like the early Restatements existed, [l]awyers chose the comprehensive style of reporting, preferring that all precedent be available. (14) From the dawn of the twentieth century until the mid-1970s, that was the state of the federal judiciary as a whole: full publication, strong precedent, and unfettered citation. (15) In the 1970s, a committee of the Federal Judicial Council, the Advisory Council on Applellate Justice's Committee on Use of Appellate Court Energies, (16) drafted its report proposing that courts issue some decisions as unpublished and uncitable. (17) When faced with the question of whether this new class of decisions would be precedent, that committee chose not to examine the issue, its constitutionality, or its practicality, calling it a morass of jurisprudence. (18) This proposal altered the characteristics of common law opinions in a manner previously unknown to the common law. …