An Aesthetic Defense of the Nonprecedential Opinion: The Easy Cases Debate in the Wake of the 2007 Amendments to the Federal Rules of Appellate Procedure

Abstract

In this Article, I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80 percent of the output of the federal courts of appeals. The recent amendment to Federal Rule of Appellate Procedure 32.1(a), requiring that all circuits allow citation to NPOs, has provoked considerable debate about how, and whether, to issue written dispositions in the class of cases currently resolved by NPOs. I defend the issuance of NPOs not as a necessary concession to judicial overwork, but rather as a valuable decisional form that plays a useful if not vital role in inculcating in practitioners the perceptual faculties required to classify, analyze, and innovate within the cultural tradition of the common law. I identify certain features of NPOs that particularly foster this situation sense, and examine current circuit practices to develop a model of a pedagogically and aesthetically successful NPO.

Keywords: NPO, nonprecedential, situation sense, precedent