Wednesday, April 12, 2006

Non-Precedential Unpublished Decisions Are Now Precedential

This is a bit of attorney inside-baseball, but fairly big news within legal circles. The Supreme Court voted today to allow attorneys to begin citing "unpublished" court opinions in federal courts, though the decision will only apply to decisions filed as of January 1, 2007.

Currently, in several circuits these cases--which represent approximately 80% of all federal appeals decisions--are not permitted to be cited and are accorded no precedential value. This practice has been criticized by many attorneys, and perhaps most prominently by Judge Richard Arnold of the Eighth Circuit, who believed it to be an unconstitutional exercise of powers not granted to the Judiciary under Article III.

The concept of "precedent" is that a court should act consistently in similar situations--and there is a well-acknowledged degree of justice in two persons in the same situation being treated in the same fashion. Nevertheless, until this decision, and with ever-increasing frequency, attorneys arguing for a particular result could be placed in the unenvious position of knowing that the court had previously ruled in their favor in a similar situation while simultaneously being barred from explaining this previous result to the court. This prohibition has now been removed.

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