Citability and the Nature of Precedent in the Court of Appeals: a Response to Dean Robel

Abstract

In Part I of this essay, I briefly consider the historical arguments for and against the appellate courts' power to issue non-precedential opinions, focusing on Judge Arnold's now-vacated opinion in Anastasoff and Judge Kozinski's opinion in Hart. I conclude that, while Judge Arnold goes too far in arguing that current non-citation rules violate Article III's conception of the "judicial power," Judge Kozinski's argument that the courts of appeals are entirely free to designate some of their opinions as non-precedential equally seems to push the boundaries of judicial propriety, if not of constitutional principle. In Part II, I consider Dean Robel's argument that the no-citation rules in the federal and state courts of appeals should be abolished. While I agree with Dean Robel's contention that unpublished opinions should be freely citable, I take issue with her implicit assertion, following the spirit if not the letter of Anastasoff, that these opinions should be treated as binding precedent. Finally, in Part III I note that, while the limits on availability and citability of unpublished opinions in the federal courts stand as obstacles to a productive and proper use of unpublished opinions, the rules in the state courts present even greater problems. I end by suggesting that state governments should rethink the rules that limit the availability and citability of unpublished opinions emanating from the state intermediate courts of appeals.