Berkeley Law

Debate over unpublished judicial opinions and no-citation rules frequently proceeds without full and updated information about citation practices and developments. This is particularly true of the state courts, whose citation practices are diverse, elusive, and fast-changing. This article offers a comprehensive report on current practices in the federal circuit courts of appeals - where nine of the thirteen circuits now allow citation of unpublished opinions (apart from related cases) - and in the state courts. The situation in the states as of late 2003 is found to be notably different from what was reported in congressional testimony in mid-2002. In place of a vast majority of states banning citation of unpublished opinions, a distinct trend toward allowing citation has produced near-equality between citation and no-citation states. (See the table in the Appendix.) The article then focuses on a proposed new rule for the federal courts, making unpublished opinions citable in all circuits, which has been put forward by the Advisory Committee on Appellate Rules of the United States Judicial Conference and on which the committee is receiving public comments (due by February 16, 2004). Problems of drafting the proposed rule are discussed, along with questions of how to deal with provisions in local circuit rules that allow, but disfavor and discourage, the citation of unpublished opinions.