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Preface: Anastasoff, Unpublished Opinions, And "No-Citation" Rules, Coleen M. Barger

The Journal of Appellate Practice and Process

In the wake of the publication of Anastasoff v. United States a new round of debate has begun over the propriety of unpublished opions and their status as precedent. Circuit courts across the nation vary widely in how this "principle of policy" is treated, thus prompting the Journal of Appellate Practice and Process to call for papers, which are included herein.

The Unpublished, Non-Precedential Decision: An Uncomfortable Legality?, Melissa H. Weresh

The Journal of Appellate Practice and Process

The United States Court of Appeals for the Eighth Circuit ruled in 2000 that its rule prohibiting the citation of unpublished opinions was unconstitutional. The decision was ultimately vacated en banc. The legality of this prohibition merits consideration by the United States Supreme Court.

Unpublished Decisions In The Federal Courts Of Appeals: Making The Decision To Publish, Stephen L. Wasby

The Journal of Appellate Practice and Process

The rise of cases brought before federal appellate courts has caused most opinions to be designated as unpublished. This practice has created much controversy. This essay addresses the decision to publish, guidelines for publication, and enforcement of those guidelines within courts.

Constitutionality Of "No-Citation" Rules, Salem M. Katsh, Alex V. Chachkes

The Journal of Appellate Practice and Process

No-citation rules raise serious constitutional concerns. Assuming that it is constitutional to designate an opinion as nonprecedential, it is not constitutional to prohibit citing an opinion. No-citation rules are unconstitutional for two reasons. The first, citation prohibitions interfere with a litigant’s First Amendment right of speech and petition. Second, citation prohibitions violate the separation of powers.

California's Curious Practice Of "Pocket Review", Steven B. Katz

The Journal of Appellate Practice and Process

The majority of any California appellate panel is permitted to certify an opinion for publication that establishes new law or modifies existing rules. The California Supreme court can reverse any publication decision without giving any reason. This practice is called "pocket review." Pocket reviews risk thwarting legislative intent and sweeping the results under the rug.

Stalking Secret Law: What Predicts Publication In The United States Courts Of Appeals, Deborah J. Merritt, James J. Brudney

Vanderbilt Law Review

For more than a quarter century, the United States Courts of Appeals have maintained two bodies of law. One is published, widely disseminated, and fully precedential. The other, now encompassing nearly 80% of all dispositions on the merits,' is unpublished, erratically distributed, and rarely precedential. What distinguishes these two sets of cases? Is it possible to predict why judges publish opinions in some cases while resolving others through unpublished opinions, memoranda, or judgment orders?

Each court has formal rules governing the publication of opinions, but those standards fail to account for variations in publication. Despite substantial overlap among circuit rules, …