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Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1

Journal of Appellate Practice & Process, Vol. 11, 2010

28 Pages Posted: 6 Aug 2009 Last revised: 8 Feb 2015

David R. Cleveland

Valparaiso University Law School

Date Written: August 5, 2009

Abstract

Adoption of the Federal Rule of Appellate Procedure 32.1 has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential. However, local rules of the Courts of Appeals are widely varied on these characteristics. The most fundamental jurisprudential question: “what is law?” has varying answers across a supposedly uniform federal system. From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.

This article, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, examines the federal judiciary’s desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions. It then categorizes and analyzes the circuits’ local rules regarding publication, citation, and precedent in the wake of Federal Rule of Appellate Procedure 32.1. Finding significant discrepancies between circuit local rules in each of these three categories, the article argues for truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.

Keywords: unpublished, opinions, precedent, publication, non-precedential, citation, 32.1, Federal Rules, local rules, circuit courts

JEL Classification: K00, K10, K40, K41, K49

Suggested Citation

Cleveland, David R., Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1 (August 5, 2009). Journal of Appellate Practice & Process, Vol. 11, 2010. Available at SSRN: https://ssrn.com/abstract=1444649 or http://dx.doi.org/10.2139/ssrn.1444649

David R. Cleveland (Contact Author)

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
(219) 465-7853 (Phone)

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