Honda Meets Anastasoff: The Procedural Due Process Argument Against Rules Prohibiting Citation to Unpublished Judicial Decisions

Abstract

Last year's Eighth Circuit decision of Anastasoff v. United States drew new attention to the much-debated rules limiting citation to unpublished judicial decisions. The scholarly opinion of Chief Judge Richard Arnold sent a shockwave through the bench, bar, and legal academy by ruling that no-citation rules were an unconstitutional expansion of the federal judiciary's Article III powers. Post Anastasoff scholarly commentary has focused on Article III arguments and remolded policy arguments that were made prior to the decision. Little attention has been paid, however, to the way in which no-citation rules impair constitutional rights of individual litigants. This Note traces the historical practice of using prior judicial decisions in arguments to courts, dating back to thirteenth century England. The author then argues that current rules prohibiting the citation of unpublished decisions remove a deeply-rocited common law procedure, and, therefore, deprive litigants of their procedural due process rights.