Finding and Citing the 'Unimportant' Decisions of the U.S. Courts of Appeals
12 Pages Posted: 29 Apr 2008
Date Written: April 25, 2008
A Federal Rule of Appellate Procedure that took effect at the end of 2006 overturned past policies in several circuits that banned or severely limited citation of unpublished or nonprecedential opinions. All U.S. Court of Appeals decisions issued after January 1, 2007, published or not, may be cited. One of the objections raised by those opposed to the rule rested on concern about access to such opinions, which constitute more than 80% of the annual total. The Judicial Conference committee that drafted and pressed for adoption of the rule pointed out that federal legislation called on the circuit courts to place all their decisions, published or not, on the Web in text-searchable format. Wrote the committee, chaired by Justice Samuel Alito (then a Third Circuit judge), [T]he E-Government Act ... makes unpublished opinions widely available at little or no cost.
Despite that legislative mandate, very real challenges confront anyone seeking to take advantage of the new rule who is unable or unwilling to pay the cost of Westlaw or Lexis. The paper surveys the challenges of searching for, retrieving, and citing unpublished or nonprecedential decisions of the U.S. Circuit Courts of Appeals without using those costly services. It also sets out a few straightforward steps the federal judiciary might take that would fulfill the promise of the E-Government Act's provisions.
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