Today the Supreme Court approved new Rule 32.1 of the Federal Rules of Appellate Procedure, which allows citation of unpublished opinions in all federal courts. (Actually, it prohibits courts from banning the citation. Same result.) Courts may still decide not to accord the opinions much precedential weight.
The rule becomes effective December 1, unless Congress votes to block it.
Legal Times quoted two contrasting views:
"This change will facilitate lawyers' representation of their clients, and it will facilitate the courts' informed decision of future cases," said Mark Levy of Kilpatrick Stockton, a member of an advisory committee that recommended the change. "It will also bring national uniformity to the process."Tony Mauro, Supreme Court Votes to Allow Citation to Unpublished Opinions in Federal Courts, Legal Times, April 12, 2006.
At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys.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."
Filed in: rules, SupremeCourt, unpublished-opinions, FRAP-32.1, Kozinski, Levy
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