Supreme Court Votes to Allow Citation to Unpublished Opinions in Federal Courts

This one’s mainly for the lawyers. But it’s actually a significant milestone in federal court administration. Since most employment litigation takes place in federal court, employers and employees stand to benefit.

For years, the federal courts have issued “unpublished” opinions and precluded lawyers from citing them as precedent.

Maddening if one is doing research and finds a great case, only to see a warning at the top that it is unpublished and may not be cited.

How can one find a case while doing research if it’s unpublished?

Simple. The “unpublished” cases are readily available electronically, on Westlaw and Lexis. So what’s the big deal? Why not allow citation? I always wondered that myself, and never saw a satisfactory answer. New Supreme Court Justices Roberts and Alito may have played crucial roles in bringing about this long overdue change.

Here’s the scoop, from law.com:

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1.
The justices’ vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. In some circuits these dispositions have no precedential value and cannot be cited. . .

At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted “entirely” by law clerks and staff attorneys. He added, “When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.”

The committee Kozinski was referring to, the Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-3rd Circuit Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Roberts Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, Wednesday’s vote may have been unsurprising. . .

The advisory committee’s original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment . . .

Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.