From Anastasoff to Hart to West's Federal Appendix: The Ground Shifts Under No-Citation Rules

Abstract

The controversy over unpublished and uncitable opinions in the federal courts of appeals (and state courts as well) continues apace. Recent developments include the opinion by Judge Alex Kozinski for the 9th Circuit in Hart v. Massanari (266 F.3d 1155), answering the opinion by Judge Richard S. Arnold for the 8th Circuit in Anastasoff v. United States (223 F.3d 898, vacated as moot, 235 F.3d 1054), which held that a rule denying precedential effect to unpublished opinions exceeded the Article III judicial power.

In this paper, after an introduction reporting the major developments of the past year, I appraise the face-off between Judges Arnold and Kozinski. Their debate focuses, I observe, on whether opinions must be binding precedents; but precedent has several other meanings, and the crucial question today is not whether opinions must be binding precedents but whether they must be citable. I venture that Judge Kozinski's historical analysis has refuted Anastasoff's claim of binding precedent but validated the position that prior decisions must be "acknowledged and considered" by later courts, and for this purpose must be citable. I then appraise Judge Kozinski's arguments against no-citation rules, finding them inadequate.

I go on to consider the degree of precedential force that unpublished opinions should be accorded in the federal courts: "binding," "persuasive," or a new status of "overrulable" precedent based on lifting the "law of the circuit" rule that prevents one panel from overruling another panel's opinion. The paper concludes by suggesting that the increased availability of unpublished opinions is deciding their citability, particularly in view of the West Group's new Federal Appendix, a published reporter of "unpublished" opinions.