Citations to Unpublished Opinions in the Federal Courts of Appeals
Tim Reagan; Meghan Dunn; Sean Harding; Andrea Henson-Armstrong; Laural Hooper; Marie Leary; Angelia Levy; Jennifer Marsh; Robert Niemic
June 1, 2005, 170 pages
(Available On-line Only)
The Appellate Rules Advisory Committee has written a new Rule 32.1 which permits attorneys and courts in federal appeals in all circuits to cite unpublished opinions. 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 yield results helpful to the Standing Committee's consideration of the proposed rule. 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. This report was presented to and considered by the Standing Committee during its June 15-16, 2005 meeting, at which it approved the Advisory Committee's proposed rule for consideration by the Judicial Conference at its September 2005 meeting.


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Table of contents
    I. Introduction 1
    II. Survey of Judges 1
      A. Preparing Unpublished Opinions 1
        1. If Citation Were Prohibited (Discouraging and Permissive Circuits) 1
          a. Length of Unpublished Opinions 1
          b. Drafting Time 1
          2. If Citation Were Allowed Only Sometimes (Permissive Circuits) 1
          a. Length of Unpublished Opinions 1
          b. Drafting Time 1
        3. If Citation Were Always Allowed 1
          a. Number of Unpublished Opinions (Discouraging Circuits) 1
          b. Length of Unpublished Opinions (Restrictive and Discouraging Circuits) 1
          c. Drafting Time (Restrictive and Discouraging Circuits) 1
          d. Problems (Restrictive Circuits) 1
      B. Work of Chambers Reviewing Briefs (Discouraging and Permissive Circuits) 10
        1. Work 10
        2. Helpfulness 10
        3. Inconsistency 11
      C. Effect of New Local Rules (A Discouraging Circuit—the First Circuit; and a Permissive Circuit—the District of Columbia Circuit) 11
        1. Frequency of Citation 12
        2. Drafting Time 12
        3. Work 12
    III. Survey of Attorneys 15
      A. Citing Unpublished Opinions in Briefs 15
        1. Wanted to Cite an Unpublished Opinion 15
          a. Opinions by this Circuit 15
          b. Opinions by Other Courts 16
        2. Would Have Cited an Unpublished Opinion 16
          a. Opinions by this Circuit 16
          b. Opinions by Other Courts 16
      B. The Impact of the Proposed Rule 17
        1. Burden 17
        2. Open–Ended Question 18
    IV. Survey of Case Files 11
      A. Opinions 11
      B. Citations 14
    V. Exhibits 17
      A. Judge Survey Response Rates 19
      B. Length of Unpublished Opinions If Citation Were Prohibited 10
      C. Time Preparing Unpublished Opinions If Citation Were Prohibited 11
      D. Length of Unpublished Opinions If Citation Were Allowed Only Sometimes 12
      E. Time Preparing Unpublished Opinions If Citation Were Allowed Only Sometimes 13
      F. Number of Unpublished Opinions If Citation Were Freely Permitted 14
      G. Length of Unpublished Opinions If Citation Were Freely Permitted 15
      H. Time Preparing Unpublished Opinions If Citation Were Freely Permitted 16
      I. Problems With Proposed Rule 17
      J. Unpublished Citation’s Additional Work 18
      K. Unpublished Citation’s Helpfulness 19
      L. Unpublished Citation’s Inconsistency 10
      M. Frequency of Citation to Unpublished Opinions After Local Rule Change 11
      N. Time Preparing Unpublished Opinions After Local Rule Change 12
      O. Work After Local Rule Change 13
      P. Attorney Survey Response Rates 14
      Q. Wanted to Cite this Court’s Unpublished Opinion 15
      R. Wanted to Cite Another Court’s Unpublished Opinion 16
      S. Would Have Cited this Court’s Unpublished Opinion 17
      T. Would Have Cited Another Court’s Unpublished Opinion 18
      U. Impact on Work of New Rule 19
      V. Attitude Toward Proposed Rule 10
      W. Cases Filed in 2002 11
      X. Dispositions (With Opinion Rates and Publication Rates) 12
      Y. Publication of Opinions in Closed Cases With Opinions 13
      Z. Very Short, Short, and Other Unpublished Opinions 14
      AA. Percentage of Unpublished Opinions That Are Very Short 15
      BB. Appeals With Counseled Briefs 16
      CC. Briefed Cases With Citations to Unrelated Unpublished Opinions 17
      DD. Briefed Cases With Citations to Unrelated Unpublished Opinions by the Deciding Court 18
      EE. Opinions That Cite Unrelated Unpublished Opinions 19
      FF. Opinions That Cite the Court’s Own Unrelated Unpublished Opinions 10
    VI. Appendices 11
      Appendix A: Judges’ Predictions of Problems Posed by Citations to Unpublished Opinions 13
        1. Second Circuit 13
          a. Unpublished Opinions Would Become Shorter 13
          b. Unpublished Opinions Are Not Helpful in Other Cases 64
          c. Increased Workload 15
          d. Disposition Time 16
          e. Quality of Unpublished Opinions 16
          f. Other Thoughts 16
        2. Seventh Circuit 16
          a. Unpublished Opinions Would Become Shorter 16
          b. Unpublished Opinions Are Not Helpful in Other Cases 17
          c. Quality of Unpublished Opinions and the Slippery Slope to Precedent 18
          d. Increased Workload 18
        3. Ninth Circuit 18
          a. Increased Workload 18
          b. Unpublished Opinions Would Become Shorter 10
          c. Quality of Unpublished Opinions 11
          d. Disposition Time 11
          e. Unpublished Opinions Are Not Helpful in Other Cases 72
          f. Slippery Slope to Precedent 12
          g. Other Thoughts 12
        4. Federal Circuit 12
          a. Quality of Unpublished Opinions 13
          b. Unpublished Opinions Would Become Shorter 13
          c. Slippery Slope to Precedent 14
          d. Increased Workload 14
          e. Government Advantage 14
      Appendix B: Attorneys’ Thoughts on the Impact of the Proposed Rule 15
        1. The Availability of Additional Authority 15
          a. More Authority 16
          b. Bias 14
          c. More Work 15
          d. Already Reviewed 17
        2. The Usefulness of Unpublished Opinions 18
          a. Strategy 19
          b. Not Precedent 11
          c. Not Useful 14
          d. Poor Quality 16
          e. Good Quality 19
        3. Access to Unpublished Opinions . 99
          a. Accessible 100
          b. Less Accessible 101
        4. Impact on the Court 103
          a. More Consistency 103
          b. Less Consistency . 106
          c. Higher Quality Opinions 106
          d. Shorter Opinions . 109
          e. Longer Opinions 110
          f. Delay 111
        5. Broad Policy Issues 112
          a. Accountability 112
          b. Blurred Distinction 113
          c. Should Be Precedent 115
        6. Other Comments 117
          a. Other Supportive Comments 117
          b. Other Neutral Comments 119
          c. Other Comments in Opposition 120
      Appendix C: Citations to Unpublished Opinions in Federal Appellate Case Files 123
        1. First Circuit 123
        2. Second Circuit 127
        3. Third Circuit 131
        4. Fourth Circuit 137
        5. Fifth Circuit 139
        6. Sixth Circuit 141
        7. Seventh Circuit 148
        8. Eighth Circuit 151
        9. Ninth Circuit 154
        10. Tenth Circuit 156
        11. Eleventh Circuit 161
        12. District of Columbia Circuit 164
        13. Federal Circuit 168

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