Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions

Abstract:     
In the mid-1970s, the federal judiciary fundamentally changed the nature of precedent in the United States federal courts. It did so quickly and quietly: first, by issuing decisions as unpublished and not citeable, and then, by denying these decisions precedential status. Every opinion issued in this fashion deprives the law of a valuable precedent and ignores common legal conceptions of how our law works. While the recently enacted Federal Rule of Appellate Procedure 32.1 restores the ability to cite to these decisions, it does nothing to address the more critical issue of whether these decisions can be denied precedential weight, and even if so, whether they ought to be denied such value. This Article advocates a return to full precedential status for all federal court decisions based on Constitutional and community-based principles. Publication limits and citation bans have fallen away in light of modern technology and jurisprudential concerns. The related practice of issuing non-precedential opinions should likewise be ended. The practice is outdated at best and constitutionally infirm at worst. Moreover, it flies in the face of American legal and lay concepts of how our justice system works. Quite simply, the federal courts ought to recognize that they are bound by what they have done in the past and that they must apply, distinguish, or overrule those precedents rather than simply ignoring them

Keywords: Federal Courts, Precedent, Unpublished, Published, Citation, Opinions, Appellate Procedure, FRAP 32.1

JEL Classifications: K40, K49

Accepted Paper Series