Much Ado about Little: Explaining the Sturm und Drang Over the Citation of Unpublished Opinions

New Rule 32.1 of the Federal Rules of Appellate Procedure - which authorizes litigants in the federal courts of appeals to cite the unpublished opinions of those courts - seems on first glance to be an unlikely target for controversy. The rule does not require any court to issue an unpublished opinion or forbid any court from doing so. More importantly, the rule expresses no view on whether a court must treat one of its unpublished opinions as binding. The rule does nothing more than give a litigant the right to remind a federal appellate court of its own words, leaving the court free to ignore those words if it chooses. Yet this modest rule may have been the most controversial proposal in the history of federal rulemaking. The Advisory Committee devoted several years to working on the issue of citing unpublished opinions - efforts that were occasionally derailed by controversy. After Rule 32.1 was finally published for comment, over 500 judges, practitioners, academics, and others submitted sometimes passionate comments on the rule. Never before had so many comments been submitted regarding a proposed amendment to a federal rule of practice and procedure (with one exception). In this article, Professor Patrick J. Schiltz, who has served as the Reporter to the Advisory Committee since 1997, attempts to explain why such a seemingly unimportant rule was the subject of so much acrimony. Professor Schiltz begins by providing a detailed insider's account of the lengthy and tortuous history of Rule 32.1. That account exposes both strengths and weaknesses in the Rules Enabling Act process. Professor Schiltz then dissects the motivations of the attorneys who so passionately favored Rule 32.1 (despite substantial reason to believe that citing unpublished opinions rarely influences a court) and the judges who so passionately opposed Rule 32.1 (despite substantial reason to believe that allowing citation of unpublished opinions has little impact on judges). Professor Schiltz argues that Rule 32.1 was controversial for a wide variety of reasons, many of which had little to do with the citation of unpublished opinions.