Much Ado About Little: Explaining theSturm Und Drang over the Citation ofUnpublished Opinions

I. IntroductionI was appointed Reporter to the Advisory Committee on the Federal Rules of Appellate Procedure (FRAP) in 1997. I have enjoyed just about every aspect of my work-except unpublished opinions.1 I feel as though the issue is stalking me. On the day that I became Reporter, the issue of unpublished opinions was the most controversial issue on the Advisory Committee's agenda. Eight years later, the issue of unpublished opinions continues to be the most controversial issue on the Advisory Committee's agenda. I have devoted more attention to the unpublished-opinions issue than to all of the other issues the Advisory Committee has faced-combined.2 At times, I have devoted more attention to the unpublished-opinions issue than to all of my children-combined. An Advisory Committee member once joked that my obituary would be unpublished.The federal courts of appeals take three approaches to regulating the citation of unpublished opinions.3 Four restrictive4 circuits-the second, Seventh, Ninth, and Federal-ban it altogether.5 Six circuitsthe First, Fourth, Sixth, Eighth, Tenth, and Eleventh-permit it in limited circumstances (typically, when no published opinion adequately addresses the same issue as the unpublished opinion).6 Three circuits-the Third, Fifth, and D.C.-freely permit it.7 Thus, nine of the thirteen circuits (the six discouraging circuits and the three permissive circuits) permit the citation of unpublished opinions in at least some circumstances, but ten of the thirteen circuits (the four restrictive circuits and the six discouraging circuits) prohibit the citation of unpublished opinions in at least some circumstances.In 2003, the Advisory Committee published for comment a proposal to add a new Rule 32.1 to FRAP.8 Rule 32.1 would require the federal courts of appeals to freely permit parties to cite unpublished opinions in their briefs and other submissions. Rule 32.1 would thus impose one rule-a rule that reflects the practice of the Third, Fifth, and D.C. Circuits-on all of the circuits. The Advisory Committee received over 500 written comments about Rule 32.1. I do not have much to say about the merits of the rule. No one could have much new or important to say about the merits of a rule that has already been the subject of over 500 comments submitted by some of the best legal minds in America. Rather, I would to discuss an interesting question about the controversy surrounding the proposed rule. The question is: Why is there controversy surrounding the proposed rule?Consider the following two seemingly contradictory facts. First, Rule 32.1 has attracted a great deal of highly emotional support and opposition. The comments that were submitted on Rule 32.1 were the second-most ever submitted on a proposed amendment to a rule of practice and procedure.9 One need only read a few of those public comments10-or a few of the dozens of articles11 that have been published on the general topic of unpublished opinions-to appreciate the depth of feeling surrounding the issue. One federal appellate judge nicely captured that depth of feeling when he told me that trying to talk to his colleagues about Rule 32.1 was like trying to talk to them about sex or religion.Second, Rule 32.1 is not sex or religion. Rule 32.1 is not even an important rule. Numerous jurisdictions have abolished or liberalized nocitation rules, and, to my knowledge, not a shred of evidence indicates that it has made much difference, one way or another. I am confident that the average American-even the average judge or lawyer-would agree that the citation of unpublished opinions does not rank with sex or religion as a topic worthy of controversy. Indeed, I suspect that the average American would have stronger feelings about whether we should continue to recognize September 17 as National Apple Dumpling Day than about whether judges and lawyers should be able to cite unpublished opinions. …