Friday, December 19, 2008
Professor Amy E. Sloan of the University of Baltimore School of Law has published a new article in the Nebraska Law Review, advocating for a new category of "overrulable" legal authority to give non-precedential opinions some weight without giving them full precedential value. Her article is called If You Can’t Beat ‘Em, Join ‘Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts. Here's the abstract of her article as posted on SSRN:
For many years, judges and academics have debated the pros and cons of non-precedential judicial opinions in the federal appellate courts. Although the utility, necessity, and advisability of non-precedential opinions remain interesting issues to debate, at this point they are somewhat beside the point. Academics have lost the debate on non-precedential opinions. Judges control whether non-precedential opinions are permissible, and judges are not going to give them up anytime soon.
So, as the saying goes, if you can't beat 'em, join 'em. Rather than continue to debate the merits of non-precedential opinions, the better course of action is to find a principled way to integrate them into the judicial system, both to provide clarity regarding the weight of the opinions and to preserve the legitimacy of the federal appellate courts.
This article argues that Federal Rule of Appellate Procedure 32.1, which eliminated citation restrictions on non-precedential opinions, should be revised to integrate non-precedential opinions into the judicial system. Specifically, the rule should expressly authorize non-precedential opinions, establish uniform procedures governing their issuance, and define their authoritative value. The easiest answer to this last issue is to make the opinions persuasive authority. A bolder step, and one this article advocates, would be to create a new category of "overrulable" authority to give non-precedential opinions some weight without giving them full precedential value. The article concludes that the federal judiciary must take steps to institutionalize non-precedential opinions in a way that preserves the system of precedent.
Joe Hodnicki of the Law Librarian Blog said that Professor Sloan has come up with "an interesting idea but one that might be somewhat difficult to implement." Click here to read more of what he has to say about this idea on the Law Librarian Blog.