The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1.
The justices’ vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. In some circuits these dispositions have no precedential value and cannot be cited. . . .
10 Years of LIKELIHOOD OF CONFUSION®
Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges. Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.
Sounds right to me. I wrote this on the INTA list last winter:
The issue of non-citability and “not precedential” rulings in the federal courts is a troubling one, because it goes square against the idea of the common law and statutory interpretations as being based on accretions of precedent. There is usually no way for the mortal to know why one decision is regarded as worthy of being deemed precedential and others are not, nor to understand why, if it is not good enough for precedent, the ratio decidendi (if you will!) of a given opinion was good enough for that case. Judge Kozinski takes a shot at explaining why citation to unpublished opinions is not allowed here, essentially arguing from the not-too-principled position that they’re not written all that well, but this still leaves us with the question of published TTAB decisions not being citable.
The suggestion by a list member that attorneys should “always note that they are not offered as precedent but as indicative of how the TTAB has approached similar matters in the past” isn’t too helpful to me. I understand his distinction, I guess – that the decisions are not offered as _binding_ precedent – but his use of it is still what I think lawyers call precedent. Since so few cases really are binding in the sense that no distinction can be made between a precedent and the case at bar, this just strikes me as the plain old use of precedent — precisely to demonstrate how other tribunals have approached similar matters in the past.
Judge Kozinski is quoted in the article cited above as saying, “When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.” But Judge Kozinsky, you’re not allowed to sell sausage that’s unfit for human consumption. If you want to do that, go into the arbitration business — not an Article III judge-for-life job, or for that matter, a fairly comparable gig with the TTAB.
UPDATE: A good (not new, but good) treatment here.
Posted on April 17, 2006. 
