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Tuesday, September 20, 2005

Law - Judicial Conference Supports Citing Unpublished Opinions

A news alert from Law.com reports that:

The federal judiciary's policy-making board endorsed Tuesday a sweeping rule change that would allow lawyers to cite unpublished opinions in federal appeals courts nationwide as of 2007, ending a practice that brought charges of a hidden justice system against major appellate courts. The Judicial Conference also voted not to take a position on whether the 9th Circuit should be split in two. But members agreed to oppose any circuit-splitting bill that does not provide adequate funding to cover costs.
The feds are different from the states (see posting about the State of NJ immediately below) -- the feds "unpublished" opinions are in fact published, at least online. Their issue is whether they may be cited. Tony Mauro of Legal Times writes:
The citation rule change, if ratified by the Supreme Court and untouched by Congress, would end a practice that brought charges of a hidden, unaccountable system of justice against some of the nation's largest and most important appellate courts. The 2nd, 7th, 9th and federal circuits ban citation of unpublished opinions outright, while six other circuits discourage it.

Passage of the resolution by voice vote followed "a great deal of debate," said Judge Carolyn Dineen King, chair of the executive committee, at a post-meeting news conference.

She said passage was eased by an amendment introduced at the meeting that would make the change prospective only, meaning that lawyers will be able to cite only those unpublished opinions issued after Jan. 1, 2007. King also stressed that individual circuit courts will be able to set their own rules about the precedential value unpublished opinions can be given.

That last line is somewhat troubling.

For an ILB backgrounder on all this, see this 7/13/05 entry, for starters.

Posted by Marcia Oddi on September 20, 2005 07:54 PM
Posted to General Law Related