Saturday, December 30, 2006

happy new FRAP

Professor Mark Wojcik, at the John Marshall Law School, sends an important reminder and some questions: 

"Happy New Year to all, and happy new rules of Federal Appellate
Procedure, which take effect on January 1, 2007.

"First a reminder: as of January 1, 2007, FRAP 32.1(a) will provide that
a [federal] court may not prohibit or restrict the citation of federal
judicial opinions, orders, or judgments that have been (i) designated as
'unpublished,' 'not for publication,' 'non-precedential,' 'not
precedent,' or the like; and (ii) issued on or after January 1, 2007.

"1.  Do you think that federal courts will continue to issue any future
decisions as 'non-precedential' (or a similar phrase described in FRAP
32.1), or will these 'unpublished' decisions be an historical anomaly
that our future students will see mentioned only in a legal trivia game?

"2.  How should we teach (if at all) how to cite unpublished opinions
decided before January 1, 2007?

"3.  What will become of the Federal Appendix, our reporter for
unpublished decisions?  Are we about to have our Appendix removed? :)

"4.  Because the 32.1 rule change is a federal one, are there particular
state rules on unpublished state court decisions?  Or are states
following the federal lead?

"5.  Does the new rule have any special application for federal
administrative agencies, which are not expressly covered by FRAP 32.1?

"6.  The amended rule 32.1 is in the Federal Rule of Appellate Procedure,
which under FRAP 1(a)(1) governs procedures for the federal courts of
appeal.  What do we tell our students when they ask if those appellate
citation rules apply in the federal trial court?  Alternatively
(assuming there will be unpublished decisions after January 1) could a
district court adopt its own local citation rules?"


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