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Mentioning the Unmentionable

In the annals of American jurisprudence, yesterday's decision by the Supreme Court to allow citation to unpublished opinions in federal courts may warrant little more than a footnote -- but at least it will be a citeable footnote. Among bloggers and legal commentators, however, the decision drew greater notice. Legal Times writer Tony Mauro wrote:

"The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide."

While many praised the decision, Nancy Soonpass of Legal Writing Prof Blog noted this concern:

"[F]ederal judges are concerned that they will now have to spend additional time polishing these opinions if they can be used as precedent and that such an expenditure of time will increase court backlogs."

Commenting from north of the border, Canadian legal researcher Elizabeth Ellis observed that the decision will add to the mountains of materials lawyers already have to sift through:

"Twenty five years ago, I recall spending most of my time 'researching' because the finding tools were not that helpful. .. Today, I think the 'research' time has been shortened -- but the analysis time lengthened because there is so much more material to consider and the material is often unorganized and confusing."

That adds up to higher legal bills for clients, she says.

To my mind, this is the right decision. You can judge for yourself. And feel welcome to publish your judgment as a comment here.

The text of the new Rule 32.1 of the Federal Rules of Appellate Procedure is here. The court's order adopting the rule is here. For a "compendium of information" about nonpublication of judicial opinions, see

Posted by Robert J. Ambrogi on April 13, 2006 at 09:28 AM | Permalink | Comments (0) | TrackBack (0)


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