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Apr 13, 2006


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The actual rule only prohibits citation "as precedent" of unpublished decisions explicitly "designated as not to be cited as precedent." Many unpublished decisions are not so designated and are in fact citeable as precedent.

If a non-precedential decision is the best you have, go ahead and cite it as persuasive authority. Just be open and honest about it and cite the rule so they know you know what you're doing. You shouldn't be sanctioned or even admonished. And if the case is on point, the fact that another panel did go your way should be persuasive. Precedent or not, a later panel should follow a prior decision which is not distinguishable and/or is not clearly wrong.

As for the new rule, I wish it completely prohibited non-precedential decisions. There's something very offensive about a case being good law for you but not for me (or vice versa). Unpublished decisions are fine. If there was less consideration by the panel of what seemed to be a simple issue, the decision will probably contain enough holes that a later panel can use to distinguish it. If not, what possible reason is there to not follow the prior decision?

As for sausage making and the argument that unpublished decisions are written by law clerks, a sign in my college cafeteria said, "If you're not proud of it, don't serve it." Unpublished law-clerk-written opinions are very scary -- especially if you're the one who lost the decisions which was not published and is the only case that ever went that way. Prohibiting citation of unpublished decisions falsely assumes law clerks make no mistakes and simultaneously prevents discovery and/or correction of errors actually made.

The fear that there will be more work for judges if every case is precedent is not persuasive (and elevates expediency over getting it right).

Most unpublished opinions are not worthy of citation and will not be cited just because they can be. On the other hand, when an unpublished case is cited, that fact alone usually suggests that the case is more important than originally believed and/or that it needs to be corrected. While correcting errors is little consolation to the party which lost in the unpublished decision, shouldn't all errors be corrected? Moreover, true errors of law in unpublished decisions will usually be easily correctable because they are wrong. Since a later panel cannot overrule an earlier panel, the erroneous unpublished decision will problably not in fact be precedential because it failed to follow prior precedent. Unpublished decisions may also be easily distinguishable when they don't contain the full factual and/or legal analysis usually found in published decisions.

While many cases are not worthy of publication, I have seen many unpublished decisions over the years which the cynic in me can only explain as the result of ignorance, apathy, and/or a desire to hide a results-oriented decision. If all decisions are precedent, perhaps there will be fewer errors and abuses in the first place.

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