Citing Unpublished Opinions in Federal Appeals
Robert Timothy Reagan; Meghan Dunn; Sean Harding; Andrea Henson-Armstrong; Laural Hooper; Marie Leary; Angelia Levy; Jennifer Marsh; Robert Niemic
2005, 307 pages
(In Print: Available for Distribution)
At its June 2004 meeting, the Standing Committee on Rules of Practice and Procedure asked the Appellate Rules Advisory Committee to ask the Federal Judicial Center to conduct empirical research that would help the Standing Committee in its consideration of a proposed new Federal Rule of Appellate Procedure 32.1, which would permit attorneys and courts in federal appeals in all circuits to cite the court's unpublished opinions. The Center's research effort consisted of three components: (1) a survey of judges, (2) a survey of attorneys, and (3) a survey of case files. The rule, as amended and approved by the Judicial Conference in September 2005 and approved by the Supreme Court in April 2006, applies only to opinions issued in 2007 or later. The rule became effective December 1, 2006.


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Table of contents
I. Introduction 1
II. Survey of Judges 6
    A. Preparing Unpublished Opinions 6
      1. If Citation Were Prohibited (Discouraging and Permissive Circuits) 7
        a. Length of Unpublished Opinions 7
        b. Drafting Time 7
      2. If Citation Were Allowed Only Sometimes (Permissive Circuits) 8
        a. Length of Unpublished Opinions 8
        b. Drafting Time 9
      3. If Citation Were Always Allowed 9
        a. Number of Unpublished Opinions (Discouraging Circuits) 9
        b. Length of Unpublished Opinions (Restrictive and Discouraging Circuits) 10
        c. Drafting Time (Restrictive and Discouraging Circuits) 11
        d. Problems (Restrictive Circuits) 12
    B. Work of Chambers Reviewing Briefs (Discouraging and Permissive Circuits) 13
      1. Work 13
      2. Helpfulness 14
      3. Inconsistency 14
    C. Effect of New Local Rules (A Discouraging Circuit—the First Circuit; and a Permissive Circuit—the District of Columbia Circuit) 15
      1. Frequency of Citation 15
      2. Drafting Time 15
      3. Work 16
III. Survey of Attorneys 17
    A. Citing Unpublished Opinions in Briefs 17
      1. Wanted to Cite an Unpublished Opinion 17
        a. Opinions by this Circuit 17
        b. Opinions by Other Courts 18
      2. Would Have Cited an Unpublished Opinion 18
        a. Opinions by this Circuit 18
        b. Opinions by Other Courts 18
    B. The Impact of the Proposed Rule 19
      1. Burden 19
      2. Open-Ended Question 20
IV. Survey of Case Files 22
    A. Opinions 22
    B. Citations 26
V. Exhibits 30
    A. Judge Survey Response Rates 31
    B. Length of Unpublished Opinions If Citation Was Prohibited 32
    C. Time Preparing Unpublished Opinions If Citation Was Prohibited 33
    D. Length of Unpublished Opinions If Citation Was Allowed Only Sometimes 34
    E. Time Preparing Unpublished Opinions If Citation Was Allowed Only Sometimes 35
    F. Number of Unpublished Opinions If Citation Was Freely Permitted 36
    G. Length of Unpublished Opinions If Citation Was Freely Permitted 37
    H. Time Preparing Unpublished Opinions If Citation Was Freely Permitted 38
    I. Problems with Proposed Rule 39
    J. Unpublished Citation’s Additional Work 40
    K. Unpublished Citation’s Helpfulness 41
    L. Unpublished Citation’s Inconsistency 42
    M. Frequency of Citation to Unpublished Opinions After Local Rule Change 43
    N. Time Preparing Unpublished Opinions After Local Rule Change 44
    O. Work After Local Rule Change 45
    P. Attorney Survey Response Rates 46
    Q. Wanted to Cite This Court’s Unpublished Opinion 47
    R. Wanted to Cite Another Court’s Unpublished Opinion 48
    S. Would Have Cited This Court’s Unpublished Opinion 49
    T. Would Have Cited Another Court’s Unpublished Opinion 50
    U. Impact on Work of New Rule 51
    V. Attitude Toward Proposed Rule 52
    W. Cases Filed in 2002 53
    X. Dispositions (with Opinion Rates and Publication Rates) 54
    Y. Publication of Opinions in Closed Cases with Opinions 55
    Z. Very Short, Short, and Other Unpublished Opinions 56
    AA. Percentage of Unpublished Opinions That Are Very Short 57
    BB. Appeals with Counseled Briefs 58
    CC. Authorities Cited 59
    DD. Briefed Cases with Citations to Unrelated Unpublished Opinions 60
    EE. Briefed Cases with Citations to Unrelated Unpublished Opinions by the Deciding Court 61
VI. Appendices 63
    Appendix A: Judges’ Predictions of Problems Posed by Citations to Unpublished Opinions 65
      1. Second Circuit 65
        a. Unpublished Opinions Would Become Shorter 65
        b. Unpublished Opinions Are Not Helpful in Other Cases 66
        c. Increased Workload 67
        d. Disposition Time 68
        e. Quality of Unpublished Opinions 68
        f. Other Thoughts 68
      2. Seventh Circuit 68
        a. Unpublished Opinions Would Become Shorter 68
        b. Unpublished Opinions Are Not Helpful in Other Cases 69
        c. Quality of Unpublished Opinions and the Slippery Slope to Precedent 70
        d. Increased Workload 70
      3. Ninth Circuit 70
        a. Increased Workload 70
        b. Unpublished Opinions Would Become Shorter 72
        c. Quality of Unpublished Opinions 73
        d. Disposition Time 73
        e. Unpublished Opinions Are Not Helpful in Other Cases 74
        f. Slippery Slope to Precedent 74
        g. Other Thoughts 74
      4. Federal Circuit 74
        a. Quality of Unpublished Opinions 75
        b. Unpublished Opinions Would Become Shorter 75
        c. Slippery Slope to Precedent 76
        d. Increased Workload 76
        e. Government Advantage 76
    Appendix B: Attorneys’ Thoughts on the Impact of the Proposed Rule 77
      1. The Availability of Additional Authority 77
        a. More Authority 78
        b. Bias 87
        c. More Work 87
        d. Already Reviewed 89
      2. The Usefulness of Unpublished Opinions 91
        a. Strategy 91
        b. Not Precedent 93
        c. Not Useful 97
        d. Poor Quality 99
        e. Good Quality 102
      3. Access to Unpublished Opinions 102
        a. Accessible 102
        b. Less Accessible 104
      4. Impact on the Court 106
        a. More Consistency 106
        b. Less Consistency 109
        c. Higher Quality Opinions 109
        d. Shorter Opinions 111
        e. Longer Opinions 113
        f. Delay 114
      5. Broad Policy Issues 114
        a. Accountability 115
        b. Blurred Distinction 116
        c. Should Be Precedent 118
      6. Other Comments 120
        a. Other Supportive Comments 120
        b. Other Neutral Comments 122
        c. Other Comments in Opposition 123
    Appendix C: Citations to Unpublished Opinions in Federal Appellate Case Files 125
      1. First Circuit 126
      2. Second Circuit 140
      3. Third Circuit 155
      4. Fourth Circuit 171
      5. Fifth Circuit 180
      6. Sixth Circuit 190
      7. Seventh Circuit 209
      8. Eighth Circuit 219
      9. Ninth Circuit 233
      10. Tenth Circuit 243
      11. Eleventh Circuit 262
      12. District of Columbia Circuit 273
      13. Federal Circuit 292

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