Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1

Abstract

On December 1, 2006, Federal Rule of Appellate Procedure 32.1 will take effect, allowing citation to all opinions issued on or after January 1, 2007 that have been designated "unpublished" or "nonprecedential." The new Rule, under consideration by the judicial Conference of the United States since the 1990s, seemingly puts an end to the long and sometimes contentious debate over whether citation to unpublished opinions should be permitted. But the Rule does not address a more important issue: whether the federal courts of appeals should designate some of their opinions as nonprecedential. This Article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.