Saturday, November 25, 2006

FRAP 32.1 takes effect on Dec. 1, 2006

Onward, Christian Soldiers?

Back in 2004, IPBiz wrote "The July 12 issue of PTCJ [Vol. 64, No. 1580] contained some discussion of unpublished or nonprecedential opinions. It quoted Kenneth J. Schmier about the issue of fostering indifference about injustices or error."

In the time since, we have gained FRAP 32.1. This allows citation of nonprecedential opinions, but does not disallow nonprecedential opinions. STEPHEN R. BARNETT wrote:

In what has been called the most controversial issue in the history of the judicial rulemaking process, a committee of the United States Judicial Conference has proposed a new Federal Rule of Appellate Procedure, FRAP 32.1, which would require all federal circuit courts of appeals to permit citation of their unpublished opinions (or orders). The proposed rule - scheduled for action by the Judicial Conference on September 20, 2005 - has produced a rare outpouring of 513 public comments. These come overwhelmingly from lawyers and judges in the Ninth Circuit; they are overwhelmingly opposed to Rule 32.1; and they overwhelmingly predict dire results if the rule is adopted.

The proposed rule offers a natural experiment. The rule would require four federal circuits, the Second, Seventh, Ninth, and Federal, to do what the other nine circuits already do: let their unpublished opinions be cited. It should be possible, therefore, to examine the situation in the nine circuits where citation is allowed - the citable circuits - to see whether harmful effects have in fact come to pass when citation is permitted. This paper examines for that purpose two groups in citable circuits from whom one would have expected to hear of such adverse effects if they existed: (a) federal circuit judges, and (b) attorneys in federal public defender offices (federal public defenders).

Howard Bashman wrote:

FRAP 32.1, permitting citation to unpublished and non-precedential federal appellate court rulings, stands as the most controversial amendment to the Federal Rules of Appellate Procedure of all time. Nevertheless, this new rule is guaranteed to arrive on the scene not with a bang but with a whimper. That's because, although FRAP 32.1 officially takes effect on Dec. 1, the rule will only apply to unpublished and non-precedential opinions issued on or after Jan. 1, 2007. As a result, the impact of FRAP 32.1 will probably be imperceptible for many months in those circuits that, before the new rule's advent, had prohibited any citation to their own unpublished and non-precedential decisions. And because non-precedential opinions will continue to lack precedential value even after FRAP 32.1 takes effect, savvy advocates will only cite to unpublished or non-precedential rulings in the absence of any equally relevant published and precedential decisions.

About fostering indifference to injustices, recall the words of Judge Lourie in Amgen v. Hoechst: "while the result may be of exceptional importance to the parties, it does not seem to be so to the law."


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