Judge Richard Arnold’s conversations with a “regular” lawyer about citation to “unpublished” opinions

arnold_richardI am pleased to post a guest piece by Elaine Mittleman  an experienced federal appellate practitioner. It has to do with the late Richard Arnold, one of the nation’s most highly respected judges, and his views about “unpublished” opinions as precedent. While the guest post is a thoughtful discussion of the substance of the issue, I am personally more interested in the two items of correspondence that Judge Arnold sent to Elaine. It shows Richard at his very best, taking the time to correspond with a “regular” lawyer about an issue that was important to the writer and recipient. From a historical perspective, Elaine’s post adds an important dimension to Richard’s biography and that is an especially good thing. Enjoy.

I have been thinking of the late Judge Richard S. Arnold of the Eighth Circuit.  A recent article about the 25th anniversary of PACER [Public Access to Court Electronic Records] caused me to reflect again on Judge Arnold’s important and path-breaking perspective on permitting the citation of unpublished opinions.

The United States Courts website article, “25 Years Later, PACER, Electronic Filing Continue to Change Courts,” December 9, 2013, explains that, for every Third Branch court, “all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes.  This level of transparency and access to a legal system is unprecedented and unparalleled.”

Judge Arnold sent me an extremely thoughtful letter dated October 25, 1999 (see below), in response to a letter about a proposed American Bar Association resolution and the issue of unpublished opinions. He wrote, “(a)s to ‘unpublished’ opinions, I do not wish to say much, lest I become too emotional.  Whether an opinion is sent to West or other book publishers is important, but not crucially so.  But the assertion by any court that it has the right to decide a case differently from an identical case submitted the day before, merely because the earlier case was not ‘published,’ I find truly offensive.”

He admitted, “(l)et me warn you that my views are distinctly in a minority among judges.  In March of 1998 I attended my last meeting of chief circuit judges.  …  At that meeting we discussed proposals to make various changes in the system of published and unpublished opinions, including a proposal to acknowledge that all opinions have precedential value.  I believe I am correct in recalling that no one at the meeting favored the proposal except me.”

In a letter (see below) dated December 13, 2001, Judge Arnold enthusiastically commented to me, “I appreciate very much your sending me the information about the D.C. Circuit’s proposed rule change.  My response is one word: ‘Hooray!’”

The excellent blog, How Appealing, written by attorney Howard Bashman, included a series of “20 Questions” for selected judges.  Senior Judge Arnold responded to the 20 questions he was asked in a post (see responses to questions 12-16) dated November 3, 2003. In addressing questions about unpublished opinions, Judge Arnold emphasized that, “(i)t’s my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. …  I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin.” Judge Arnold also predicted that, “the rule against citation … and attempts to enforce it are doomed to fail. … (I)t is just not possible to put that much of a restraint on the availability of information.”

Rule 32.1 of the Federal Rules of Appellate Procedure provides that a court may not prohibit the citation of federal opinions that have been designated as unpublished or non-precedential.  This Rule applies to opinions issued on or after January 1, 2007. Local Rule 32.1A of the Eighth Circuit provides that unpublished opinions are not precedent.  Unpublished opinions issued on or after January 1, 2007, may be cited in accordance with Federal Rule of Appellate Procedure 32.1.

In a letter dated July 10, 2006, to the editor of The National Law Journal concerning unpublished opinions, I noted the passing of former Chief Judge Richard S. Arnold of the Eighth Circuit and former Chief Judge Edward R. Becker of the Third Circuit. Further, I emphasized that a major part of the legacy of those judges should include the appreciation, as acknowledged by the adoption of Fed. R. App. P. 32.1, that all opinions are important and may be cited.

Judge Ralph Adam Fine of the Wisconsin Court of Appeals commented in an email message dated July 25, 2006, on my letter to The National Law Journal, noting that he respectfully disagreed.  He explained that, “(t)he rule in our system, as it was in the federal system before the recent change, is that unpublished decisions of our court may not be cited as precedential or even ‘persuasive’ authority.  The main reason is that most of the routine cases (that is, those merely replicating existing law) are drafted, in the first instance, by staff attorneys or law clerks.  Although the result is correct, occasionally unfortunate language may seep into those decisions because the deciding judges do not read them as they would a decision circulated by a colleague that is destined for publication. As Judge Alex Kozinski has so thoughtfully and eloquently explained, appellate judges in the federal system give even less scrutiny to these run-of-the-mill decisions.”

There may be distinctions between federal and state courts that explain or justify differing rules for publishing and citing opinions.  The controversy about citation of unpublished decisions continues.  A 2013 article by attorneys at Manatt, Phelps & Phillips, LLP, titled, “To Cite or Not to Cite?  That is the Question,” discusses citation rules in California federal and state courts.  The attorneys argue that the availability online of unpublished opinions has made it more tempting to cite them, even if there is confusion about the propriety of doing so.  They offer a roadmap for California practitioners to determine whether a particular decision may be cited in federal and state courts in California.

Judge Arnold’s position that unpublished opinions can be cited has several practical advantages.  This simple practice does not require a roadmap and rejects any argument that it is improper to cite unpublished opinions.  Further, I believe that Judge Arnold did not accept that some decisions are “run-of-the-mill” – and possibly not even read by the deciding judges – while others deserve a higher level of judicial analysis and contemplation.  I think Judge Arnold appreciated that a court decision affects and is important to, at a minimum, the parties involved.  Thus, the attitude that many opinions can be treated as insignificant and not worthy of recognition can foster unfairness in the legal system.  The result may be that a significant number of persons seeking their day in court feel that they were denied that basic opportunity.

It may be questioned whether the terms published and precedential have lost their original meaning and impact.  If opinions are available online and throughout the nation to all who want to read them, they should be permitted to be cited in legal pleadings.  Judge Arnold’s prediction – that enforcement of rules against citation of unpublished opinions is doomed to fail – was exceedingly accurate.

Elaine Mittleman

Many thanks, Elaine!


Judge Richard S. Arnold Letter 10.25.99.redacted

Judge Richard S. Arnold Letter 12.13.01

4 responses

  1. Rich, this is fascinating and speaks well of Judge Richard Arnold. I use his first name, of course, so that he not be confused with his brother Judge Morris Arnold, whom I had the great pleasure of meeting at Creighton Law School a few months ago as he spoke about FSIA.

    In any event, I have always agreed with Judge Richard Arnold on the subject of “unpublished” opinions. The notion of them being “unpublished” became an utter misnomer once they started getting collected into “Fed. App’x” and became easily available online. As a lawyer, there are few more frustrating things than finding an “unpublished” opinion that is “on all fours” with your case, and being told that you can’t cite it. Now you can cite it, but the court doesn’t have to follow it — which is progress, I suppose.

    The dirty secret is that a fair number of “unpublished” opinions (particularly in a badly fractured court like the Ninth Circuit) are actually quite debatable as the result they reach, but the panel fears en banc review and buries the result in a cryptic, unpublished opinion that has virtually no chance of further scrutiny.

    There are some amusing counter-examples, however. The famous decision of United States v. Leon in which the Supreme Court declared that there was a “good faith” exception to the exclusionary rule was actually on review of an unpublished Ninth Circuit decision. Weirder still, AMK dissented from the panel opinion and mused that if ever there were an example of the exclusionary rule being too costly for what was at best a technical violation of the Fourth Amendment, Leon was such a case. Now let’s contemplate this for a moment. It was an unpublished opinion, but it drew a dissent.

    Anyway, AMK’s dissent caught the Supreme Court’s eye and the Court granted certiorari and reversed.

    Less defensible by far, is the California Supreme Court’s “de-publication” rule. In California, the Supreme Court can, instead of granting review, order a Court of Appeals decision “de-published.” This means that the Court of Appeals decision lacks the force of precedent. It’s actually worse than that, in a way. Lawyers and judges often look at these decisions and try to figure out exactly what annoyed the Supreme Court. But from the standpoint of the litigants, it’s often a matter of saying to the losing party “hey, we know you got a bad deal, but we’re really busy so we don’t have time to deal with you.” So the losing party gets stuck with this “non-decision” as law of the case. Best, Pat.

    P.S. I started by own blog. http://patrickborchers.blogspot.com/ I figured that the blogosphere just couldn’t possibly survive without me (or not).

  2. Pingback: "Judge Richard Arnold's conversations with a 'regular' lawyer about citation to 'unpublished' opinions" | Internet Tax Lawyers

  3. The issue of the unpublished opinion is something I, as someone who has written about 300 appeals, think about a good deal. I practice in New York and New Jersey where the rules is very different. In New Jersey, the intermediate appellate court writes long and thoughtful opinions and then stamps them with a warning that they are not to be cited. The theory, I guess, is that these decisions break no new ground and how many cases do you need that stand for the proposition that a landowner must have notice of a defective condition before liability can be imposed.

    By contrast, the New York intermediate appellate courts publish every opinion. Most of them, however, especially in the First and Second Judicial Departments (there are four) are absurdly short and consist of little more than a very bare description of the claim, the outcome below, the holding (no more than 10-15 words) and a short string cite. These cases are, in effect, unpublished published decisions that cannot be rationally cited (that doesn’t stop people from citing them).

    What to do? Initially, I felt everything should be published (I loved seeing my name listed as counsel (even if I lost). As I’ve aged, I now believe that courts should publish fewer opinions, especially when no new ground is being broken, but publish longer opinions that provide more factual meat to go with the legal bones so when we cite a case we can discuss the facts and show why the cited case should, or should not, be controlling.

    My practice in citing cases is not to dump a string cite that stands for a basic proposition and then argue based on my own say-so. Rather, I look for cases where the facts are similar to the facts of the case I am arguing.

    The rationale for the very short opinions in the First and Second departments is that they are too busy to take the time to delve into the facts. However, most of that work Is already in the bench memo and it would be a simple matter to “borrow” a few factual paragraphs from the bench memo so that then the legal opinion is stated, there is a factual framework that explains the reason for the holding.

    Perhaps the funniest thing that has happened to me was that I was attacked by an adversary for citing and “unpublished” case. In support of his argument that it is improper to cite unpublished cases, my adversary cited, of course, an “not for publication” decision.

    So perhaps we should adopt a policy of fewer published decisions, where no new legal or factual ground is being broken, but that those opinions that are published should provide the factual framework that supports the holding.

  4. Harry,

    Thanks for writing. I love the fact that you were “attacked by an adversary for citing and ‘unpublished’ case. In support of his argument that it is improper to cite unpublished cases, my adversary cited, of course, an ‘not for publication’ decision.” Irony is often lost on lawyers.

    All the best.


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