An aesthetic defense of the nonprecedential opinion: The easy cases debate in the wake of the 2007 amendments to the federal rules of appellate procedure

UCLA Law Review

Volumn 55, Issue 3, 2008, Pages 643-703

  Mason, Caleb E ^a  

^a NONE

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EID: 41949102788     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (315)

1. These opinions appear in a variety of forms and with a variety of names, depending on the circuit. Some are signed, some are per curiam; some are designated "opinions," others "memorandum opinions," others "orders," others "summary orders." I refer to these collectively as nonprecedential opinions (NPOs).
2. See ADMIN. OFFICE OF THE U.S. COURTS, 2006 JUDICIAL FACTS AND FIGURES, http://www.uscourts.gov/ judicialfactsfigures/2006/alljudicialfactsfigures.pdf (last visited Jan. 25, 2008), for all the statistics mentioned in this note. While the total number of appeals increased from 40,893 in 1990, to 68,473 in 2005,
3. id. at tbl.2.2, the number of published opinions has declined, not just as a percentage but also in absolute numbers. In 2005, there were 5499 published opinions issued by the federal courts of appeals (18.4 percent), and 24,411 unpublished opinions (81.6 percent).
4. Id. at tbl.2.5.
5. In 1990, by contrast, there were 6724 published opinions issued (32 percent), and 14,204 unpublished opinions (68 percent). Id.
6. The percentage and absolute number of cases argued orally has also declined. Looking at the year in the middle of this period, 1995, of the 27,772 cases disposed of on the merits, only 11,080 were argued (39.9 percent), as compared with 8645 out of 27,438 in 2004 (31.5 percent). Id.
7. In 2005, the number of cases disposed of on the merits increased to 29,913, while the percentage of those cases in which argument was granted dropped again, to 9018 (30.1 percent). Id.
8. See infra notes 148-152 and accompanying text (listing the circuits in each category).
9. See, e.g., David Greenwald & Frederick A.O. Schwarz, Jr., The Censorial Judiciary, 35 U.C. DAVIS L. REV. 1133, 1155 (2002) ("[I]t is fair to ask why taxpayers are paying for this prose if they cannot cite it . . . .").
10. For some examples of judges defending NPOs, see REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 130 (1990);
11. Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 OHIO ST. L.J. (1999);
12. Philip Nichols, Jr., Selective Publication of Opinions: One Judge's View, 25 AM. U. L. REV. 909 (1986);
13. Alex Kozinski & Stephen Reinhardt, Please Don't Cite This!, CAL. LAW., June 2000, at 44.
14. For some examples of judges expressing reservations, see Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. APP. PRAC. & PROCESS 219 (1999);
15. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995) [hereinafter Wald, Rhetoric of Results];
16. Patricia M. Wald, Change of Course: The Use of Precedent in the District of Columbia Circuit, 34 CLEV. ST. L. REV. 477, 500-02 (1986).
17. SEE ROBERT TIMOTHY REAGAN ET AL., FED. JUDICIAL CTR., CITING UNPUBLISHED OPINIONS IN FEDERAL APPEALS 17-19 (2005).
18. FED. R. APP. P. 32.1(a).
19. Amended Federal Rule of Appellate Procedure 32.1(a) reads: "A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments or other written dispositions 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." Id.
20. I use this form of words to avoid the question of what, exactly, are the definitional and constitutional constraints on the concept of precedent. The most straightforward interpretation of the new rule is that while courts must allow parties to cite NPOs, they may decline to treat them as controlling authority. See Niketh Velamoor, Proposed Federal Rule of Appellate Procedure 32.1 to Require That Circuits Allow Citation to Unpublished Opinions, 41 HARV. J. ON LEGIS. 561 (2004) (criticizing that indeterminate or permissive approach and advocating a uniform national rule on the precedential status of NPOs).
21. Do NPOs contravene the tradition of evolving precedent that underlies our common law heritage? See, e.g., Danny J. Boggs & Brian P. Brooks, Unpublished Opinions and the Nature of Precedent, 4 GREEN BAG 2d 17 (2000);
22. Martha Dragich Pearson, Citation of Unpublished Opinions as Precedent, 55 HASTINGS L.J. 1235 (2004).
23. See, e.g., David S. Law, Judicial Ideology and the Decision to Publish: Voting and Publication Patterns in Ninth Circuit Asylum Cases, 89 JUDICATURE 212 (2006) [hereinafter Law, Judicial Ideology];
24. David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. CIN. L. REV. 817 (2005) [hereinafter Law, Strategic Judicial Lawmaking];
25. Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals, 54 VAND. L. REV. 71 (2001);
26. Donald R. Songer et al., Nonpublication in the Eleventh Circuit: An Empirical Analysis, 16 FLA. ST. U. L. REV. 963, 983 (1989).
27. For example (and this is obviously more than just an equitable concern), do NPOs allow for differing results on what should be relevantly similar facts? See, e.g., Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 WASH. L. REV. 217 (2006) (comparing published and unpublished state-created danger cases and documenting significant "doctrinal inconsistencies").
28. See J. Lyn Entrikin Goering, Legal Fiction of the "Unpublished" Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor, 1 SETON HALL CIR. REV. 27, 33-34 (2005) ("The attorney's duty of candor to the court and the duty to uphold the integrity of the judicial system outweigh the duty to comply with local circuit rules barring citation of 'unpublished' legal authority.").
29. For example, are no-citation rules prior restraints on speech prohibited by the First Amendment? See, e.g., Maria Brooke Tusk, Note, No-Citation Rules as a Prior Restraint on Attorney Speech, 103 COLUM. L. REV. 1202 (2003). Does the issuance of NPOs violate Article III?
30. See, e.g., Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000) (finding an Article III violation), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000) (declining to reach the issue of constitutionality);
31. Arnold, supra note 5 (suggesting that they are violations);
32. Salem M. Katsh & Alex V. Chachkes, Constitutionality of "No-Citation" Rules, 3 J. APP. PRAC. & PROCESS 287, 315-23 (2001) (same). Do no-citation rules deprive litigants of due process rights?
33. See, e.g., Jon A. Strongman, Comment, Unpublished Opinions, Precedent, and the Fifth Amendment: Why Denying Unpublished Opinions Precedential Value Is Unconstitutional, 50 U. KAN. L. REV. 195 (2001);
34. Lance A. Wade, Note, Honda Meets Anastasoff: The Procedural Due Process Argument Against Rules Prohibiting Citation to Unpublished Judicial Decisions, 42 B.C. L. REV. 695 (2001). Do no-citation rules violate the First Amendment's guarantee of the right to petition for redress of grievances?
35. See, e.g., Katsh & Chachkes, supra, at 297-315 (arguing that no-citation rules violate the First Amendment).
36. See, e.g., David C. Vladek & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 WASH. & LEE L. REV. 1667, 1672 n.13 ("[O]ur main concern goes to circuit rules forbidding or discouraging even the citation of unpublished opinions. Many, but not all, of our concerns about the current publication practices of the courts would be addressed by the adoption of a rule, like that proposed by the Advisory Committee on Appellate Rules of the United States Judicial Conference, forbidding circuits from imposing and enforcing no-citation prohibitions.").
37. See generally Kozinski & Reinhardt, supra note 5.
38. By "aesthetic," I certainly intend something more than pertaining to beauty. I think it reasonably self-evident that the goal of law is justice not beauty, and that beauty and justice are valuable independently of one another.
39. REAGAN ET AL., supra note 6.
40. In particular, I think if one looks closely at the hundreds of comments by judges and attorneys recorded by the Federal Judicial Center, see id., one finds that these legal professionals (though couching their comments in instrumental terms) do have and rely on an inchoate sense of the body of law as an aesthetic object, by which I mean only that "the law" is something distinct from the sum total of all the official actions of legal authorities. Of course, I do not mean to summon the ghost of Swift v. Tyson, 41 U.S. 1 (1842), and I think most practicing lawyers understand the difference. Though I suppose there remain those who reject, on principle, any attempt to analogize legal practice to other cultural realms, the comparison of law and literature (and the analogizing of one to the other) is a venerable legal endeavor-one that, if taken seriously, might make us all better lawyers.
41. 9TH CIR. R. 36-2.
42. See, e.g., Drew R. Quitschau, Case Note, Anastasoff v. United States: Uncertainty in the Eighth Circuit - Is There a Constitutional Right to Cite Unpublished Opinions?, 54 ARK. L. REV. 847, 871-75 (2002).
43. An excellent recent introduction to critical legal studies (CLS) ideas generally, and the "law is politics" view specifically, is the anthology, THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (David Kairys ed., 3d ed. 1998).
44. A good summary of the major themes of the movement, written during its height, is Owen M. Fiss, The Death of the Law?, 72 CORNELL L. REV. 1 (1986).
45. Among the most influential early exemplars of the critical attack on the possibility of rule-based adjudication is Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982).
46. Another oft-cited core text of the movement is Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151 (1985).
47. Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 410-11 ( 1985).
48. Judges do, however, occasionally make comments that at least tend in that direction. For example, Judge Posner has explained: The way I approach a case as a judge . . . is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. See Richard A. Posner & Philip B. Heymann, The New Republic Online Debate: Tap Dancing, NEW REPUBLIC ONLINE, Jan. 31, 2006, http://www.law.harvard.edu/ programs/criminal-justice/posner-heymann-debate.pdf,
49. quoted in Posting of Brian Tamanaha to Balkinization, Judge Posner's Seductive Realism and Pragmatic Adjudication - Beware the Pied Piper, http://balkin.blogspor.com/2006/12/judge-posners-seductive-realism-and.html (Dec. 4, 2006, 10:27);
50. see also Audio recording: Debate between Richard Posner and Brian Leiter, University of Chicago Law School (Nov. 16, 2006), available at http://uchicagolaw.typepad.com/faculty/2006/11/what_do_and_wha.html (discussing pragmatic adjudication at length). And note that this approach still relies on the existence (at least in theory) of some real, identifiable barriers - legal rules - that might prevent a certain result in a certain case.
51. Paul D. Carrington, Of Law and the River, 34 J. LEGAL EDUC. 222, 227 (1984).
52. Letter from Robert W. Gordon, Professor, Stanford Law Sch., to Paul D. Carrington, Dean, Duke Law Sch., reprinted in Peter W. Martin, "Of Law and the River," and of Nihilism and Academic Freedom, 35 J. LEGAL EDUC. 1, 2-9 (1985) (internal quotation marks omitted).
53. See id. Parenthetically, I wonder how much practical difference there is between the proposition avowed and the proposition disavowed, and, more emphatically, whether Gordon actually would defend his claim for every single legal dispute.
54. I can certainly understand the indeterminacy critique as applied to contract law, substantive due process, and standing. Contract law is the mother's milk of CLS, and with good reason. In my view, the best CLS work is by scholars who have paid minute attention to the doctrinal shifts of contract law. One excellent example is Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985). For an example of the indeterminacy critique as applied to substantive due process,
55. see generally Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1383 (1984),
56. and, in particular, id. at 1364-70 (discussing abortion rights specifically). Cass Sunstein applies the indeterminacy critique to standing in his capsule history of the meandering course of the injury-in-fact requirement, which he thinks is a disguised substantive due process doctrine, at least in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
57. See Cass R. Sunstein, What's Standing After Lujan? O/Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 168-85 (1992).
58. I put "control" in quotation marks to query whether the word retains its traditional (or any) meaning when thus used.
59. See Duncan Kennedy & Karl E. Klare, A Bibliography of Critical Legal Studies, 94 YALE L.J. 461, 461 n.1 (1984) ("[T]he Conference on Critical Legal Studies . . . was founded at a meeting in Madison, Wisconsin in 1977.").
60. See REAGAN ET AL., supra note 6, at 2 (explaining that after the Judicial Conference authorized selective nonpublication in 1964, the circuits began developing local rules, and that "[t]he issue of whether unpublished opinions could be cited arose in the 1970s when federal courts of appeals developed plans for selective publication of their opinions").
61. Legal theorists looking for a wide audience are more apt to talk about the U.S. Constitution, after all, than about, for example, the substantial evidence standard of review under the Immigration and Nationality Act.
62. Some examples from constitutional law are: How many senators must there be? How old must the president be? What does "natural born" mean? And, for contract law, what does "unconscionable" mean?
63. The extent of the academic insulation from the truly easy cases that comprise so much of circuits' dockets is manifested in the CLS easy cases debate of the 1980s, in which several scholars took as their easy case model the constitutional provision that the president must be at least thirty-five years old. Then others found reasons to make application of the rule hard. See, e.g., Peller, supra note 22, at 1174;
64. see also, e.g., Schauer, supra note 23, at 420 (applying a similar argument to the two-term limit on the presidency). But no court would possibly treat any first impression case about the interpretation of a hitherto unlitigated constitutional provision as an easy case! Of course it is going to be hard in important respects - separation of powers concerns and the political question doctrine - and it certainly would be argued and published. No, the truly easy cases are the ones in which, to take one example, the courts review factual determinations by executive branch agencies under extremely deferential standards of review established by longstanding statutes subject to controlling U.S. Supreme Court interpretations. Some of those cases do turn out to be hard; but most do not, in any honest application of that term. As Robin West has pointed out, it is a mistake to assume that constitutional interpretation is an appropriate template for modeling all applications of law to the world. Constitutional interpretation, she argues, may owe as much to the nontextual and nonlegal attributes of the Constitution, as to its textual and legal functions and contours. We should not falsely generalize from those conversations to the conclusion that what is true of constitutional interpretive dialogue must be true of the interpretive debates over the meaning of all laws . . . .
65. Robin L. West, Are There Nothing but Texts in This Class? Interpreting the Interpretive Turns in Legal Thought, 76 CHI.-KENT L. REV. 1125, 1146-47 (2000).
66. In my view, the indeterminacy critique is based on a mistaken analogy to the formal incompleteness of mathematics. That an inferential system is incomplete simply means that there is always at least one true proposition that is unprovable because its proof would also entail proof of its negation. This seems to be what Robert Gordon is getting at, and what, for example, Mark Tushnet is suggesting about abortion rights. See Martin, supra note 26, at 2;
67. Tushnet, supra note 28, at 1364-70. But the incompleteness of mathematics does not call into question the result of every single mathematical calculation, nor does it diminish the usefulness or the accuracy of mathematics as a whole. To identify one particular case or class of cases for which the law provides contradictory commands is not to have said anything at all about the possibility of resolving the bulk of legal disputes according to legal rules in an essentially uncontroversial way. From the observation that the rules are sometimes indeterminate upon good-faith application, it just does not follow that they always are. Mathematical incompleteness was scary to theorists like Bertrand Russell,
68. see generally RAY MONK, BERTRAND RUSSELL: THE GHOST OF MADNESS, 1921-1970 (2001), because mathematics was thought to be a single, coherent, crystalline system in a sense that presumably no one, not even Christopher Langdell, would have applied to the law. The interdisciplinary temptations in legal scholarship are such that there is a fair body of work assessing the implications of mathematical incompleteness for legal theory in general, and the CLS critique in particular.
69. See, e.g., Mark R. Brown & Andrew C. Greenberg, On Formally Undecidable Propositions of Law: Legal Indeterminacy and the Implications of Mathematics, 43 HASTINGS L.J. 1439 (1992);
70. Mike Townsend, Implications of Foundational Crises in Mathematics: A Case Study in Interdisciplinary Legal Research, 71 WASH. L. REV. 51 (1996). Mark Brown and Andrew Greenberg provide a good summary of the various putative applications of Gödel to legal theory, so I will not do so here, besides concurring with the assessment of Robert Birmingham, who observes that the "lay reader of logic is unequipped to understand the incompleteness theorems. I carried my dog to contracts class until I conceded that she could not keep up."
71. Robert Birmingham, Calculations, 30 CONN. L. REV. 1019, 1020 (1998) (reviewing JOHN W. DAWSON, JR., LOGICAL DILEMMAS: THE LIFE AND WORK OF KURT GÖDEL(1998)). I have seen firsthand the ease with which Gödel's Theorem can transmogrify into sweeping mistrust of the very possibility of reliable inference. I taught symbolic logic for years and often, at the end of the semester, I introduced the concept of incompleteness to classrooms full of young people emotionally primed to seize on any available fulcrum with which to unseat whatever political, religious, or sexual norms they had come to find unbearably confining. This is not an unhealthy impulse, but I think it is somewhat less well suited to the law, at least in its more transcendent manifestations.
72. See, e.g., Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 125 (1984). Joseph Singer, characterizing at least one version of the indeterminacy critique, explains: Legal doctrines are always potentially indeterminate. Judges can move the line between rules and exceptions, or create new exceptions. They can nullify the application of a rule to a particular case by widening a legally enforceable standard so far that it eclipses the apparently applicable rule. Ultimately, judges always have the power to revise the rules. [However, the fact] that judges may do these things . . . does not mean they will do them. Because judges participate in a legal culture that suggests how they are to act as judges, we can often predict how they will act.
73. Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 22 (1984). Lawrence Solum, noting the extreme weakening of the indeterminacy critique entailed by its reformulation in terms of modal logic, observes that if that is all indeterminacy means, then "the truth about indeterminacy is different from that implied by most, if not all, formulations of the indeterminacy thesis in critical legal scholarship. These versions of indeterminacy will seldom, if ever, make a practical difference to the parties to a dispute."
74. Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. CHI. L. REV. 462, 495 (1987).
75. See, e.g., Solum, supra note 36, at 497.
76. Solum points out that most CLS professors either went "straight from attending a law school to teaching at one," or "possibly [did] a brief stint as a clerk for a federal appellate judge." Id. at 496. This is true enough, though I think that appellate clerkships probably moderate more indeterminacy enthusiasm than they stoke.
77. See id. at 473 ("The law is underdeterminate with respect to a given case if and only if the set of results in the case that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.").
78. And I recognize that it is very late in the day for me to be writing about it now, thirty years after the inaugural CLS conference. I do so only as background to my real subject, to which I now turn: NPOs as they actually exist in our appellate jurisprudence.
79. Kant thought that "ought" must imply "can," so that it would never occur that a person would have a moral obligation that circumstances barred him from meeting. See IMMANUEL KANT, GROUNDWORK FOR THE METAPHYSICS OF MORALS 63-79 (Allen W. Wood ed. and trans., Yale Univ. Press 2002) (1785).
80. Id.
81. THOMAS NAGEL, MORTAL QUESTIONS 33 (1979).
82. See REAGAN ET AL., supra note 6. The study's conclusions are borne out by reflection on the types of legal and factual settings in which NPOs typically arise.
83. The archetypal practitioner of this form is probably the eighteenth-century master Ike Taiga. See FELICE FISCHER WITH KYOKO KLNOSHITA, IKE TAIGA AND TOKUYAMA GYOKURAN: JAPANESE MASTERS OF THE BRUSH (2007) (exhibition catalog).
84. United States v. Booker, 543 U.S. 220 (2005).
85. See 8 U.S.C. § 1101(a)(42)(A) (2000)
86. Navas v. INS, 217 F.3d 646, 655 & n.9, 656 & n.10 (2000).
87. See, e.g., Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
88. See, e.g., id. at 271 (explaining the standard of review).
89. See 8 U.S.C. § 1158(b)(1)(B)(iii).
90. Id. § 1252(b)(4)(B);
91. see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (interpreting the former governing statute to articulate the same standard of review).
92. Prior to 2005, courts construed the governing statute to require that the discrepancy "go to the heart" of the story - in other words, that it relate to some aspect of the story that could be dispositive of the claim. See, e.g., Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir. 2001). But the U.S. Congress amended the statute in 2005 so that now any discrepancy will suffice.
93. See Real ID Act of 2005 § 101(a)(3), 8 U.S.C. § 1158(b)(1)(B)(iii) (Supp. 2005) ("[A] trier of fact may base a credibility determination . . . without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of applicant's claim . . . .").
94. Gao, 299 F.3d at 272 ("Generally minor inconsistencies and minor admissions that reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding." (citations omitted) (internal quotation marks omitted)).
95. You can always insist that every time a rule is applied the rule itself is changed; the rule is nothing but the sum of its applications; it's a Heraclitean river, etc. But do you really believe that? Did Heraclitus? I doubt it. I imagine that when he sent his slave down to the river to get some water he identified the river by name and expected that the water would be in relevant respects identical to the previous day's water, or close enough to be worth drinking. Most of the time, in my observation, when people quote Heraclitus on rivers, they are not serious.
96. For example, which iterations of an applicant's story may the immigration judge (IJ) comb through in search of discrepancies? A typical asylum applicant has filled out a formal application that contains a written narration of the relevant events. The applicant must then testify orally before the IJ, who will often use the application to try to trap the applicant by quizzing him or her on details. Some applicants were also interviewed upon arrival at U.S. airports by immigration agents. Should these airport interviews be thrown into the mix? The answer to that question changes the scope of the underlying rule, and so, when that question arises, the opinions are published, generally holding that airport interviews should not be used against applicants. See, e.g., Singh v. INS, 292 F.3d 1017, 1021-24 (9th Cir. 2002);
97. Balasubramanrim v. INS, 143 F.3d 157, 163 (3d Cir. 1998).
98. Existing published case law sets some negative conditions on reasonableness: It cannot be, for example, conjecture, speculation, or stereotype. See, e.g., Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) ("If the IJ's conclusion is not based on a specific, cogent reason, but, instead, is based on speculation, conjecture, or an otherwise unsupported personal opinion, we will not uphold it because it will not have been supported by such relevant evidence as a reasonable mind would find adequate.");
99. see also, e.g., Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (rejecting an adverse credibility determination based on the IJ's "personal conjecture" that Indian passport officials would never misalign a signature card when gluing it onto a passport);
100. Berishaj v. Ashcroft, 378 F.3d 314, 324-25 (3d Cir. 2004) (rejecting an adverse credibility determination based on the IJ's assumptions about, inter alia, how long it would take an Albanian speaker to learn Serbian, and whether the Serbian army would issue weapons to Albanian conscripts);
101. Singh v. INS, 292 F.3d 1017, 1024 (9th Cir. 2002) (rejecting an adverse credibility determination based on the IJ's "assumptions about what the motives of the police should have been" when the applicant was arrested);
102. Gui v. INS, 280 F.3d 1217, 1226 (9th Cir. 2002) (rejecting an adverse credibility determination based on the "IJ's own opinions as to how best to silence a dissident"). Of course, one might well wonder, then, why, if the legal standard is so readily applicable, one sees patterns such as this: In the Ninth Circuit, Judge Reinhardt votes for the immigrant in 62 percent of asylum cases, while his colleague Judge Wallace votes for the immigrant in only 4 percent of asylum cases.
103. Law, Judicial Ideology, supra note 11, at 215. The median among the Ninth Circuit judges is 15 percent, with only four judges of forty granting asylum in over 30 percent of the cases; the top three judges, at 45 percent, 50 percent, and 62 percent, are clearly outliers. Id. The answer is that a wide spectrum of results fit the reasonable classification, and writing more precedential opinions on the meaning of substantial evidence is probably not going to clarify the standard any further. The statute and the case law hand a wide degree of discretion to judges; the fact that they exercise that discretion in measurably different ways does not signify that the law's meaning changes with each particular discretionary application of it.
104. See, e.g., Shadhat v. Gonzales, 182 F. App'x 704 (9th Cir. 2006) (upholding the IJ's finding that the immigrant's claim of a knife attack by government supporters was contradicted by the medical report he submitted from his own doctor).
105. Zetchem v. Gonzales, 184 F. App'x 332, 333 (4th Cir. 2006).
106. Theinkeu-Donfack v. Gonzales, 182 F. App'x 172, 172 (4th Cir. 2006).
107. Wald, Rhetoric of Results, supra note 5, at 1373.
108. Blbulyan v. Gonzales, 181 F. App'x 681, 681-82 (9th Cir. 2006).
109. Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004).
110. Guo Fu Lin v. U.S. Att'y Gen., 177 F. App'x 150, 151 (2d Cir. 2006).
111. Mei Rong Zheng v. Gonzales, 181 F. App'x 279, 281 (3d Cir. 2006).
112. Xin Jie Xie v. Ashcroft, 359 F.3d 239 (3d. Cir. 2004).
113. For another good example of a succinct but sufficiently informative application of the rule, see Ri Fu Yang v. Department of Homeland Security, 183 F. App'x 74 (2d Cir. 2006).
114. See Lie v. Ashcroft, 396 F.3d 530, 532-33 (3d Cir. 2005);
115. U.S. DEP'T OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, 1999 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES - INDONESIA (2000).
116. Lie, 396 F.3d at 537.
117. Id.
118. 396 F.3d 530.
119. Id. at 537 (internal quotation marks omitted).
120. To be sure, asylum claimants may still argue that although their past experiences in their country of origin did not constitute persecution, they have a well-founded fear of future persecution. Country conditions might have changed, for example. Thus, it remains open to ethnic Chinese Christian Indonesian asylum claimants to argue that the government is now involved in street violence to a greater extent than in 1998. But in dozens of cases, the only basis for the applicant's allegation of well-founded fear was the 1998 riots, and these claims continue to be made. See, e.g., Wijaya v. Att'y Gen., 207 F. App'x 251 (3d Cir. 2006);
121. Tanudidjaja v. Att'y Gen., 198 F. App'x 267, 268-70 (3d Cir. 2006).
122. 186 F. App'x 331 (3d Cir. 2006).
123. Id. at 332-33.
124. Id. at 333.
125. See, e.g., Liliana v. Att'y Gen., 161 F. App'x 198, 200-01 (3d Cir. 2005).
126. ADMIN. OFFICE OF THE U.S. COURTS, supra note 2, at tbl.2.3.
127. Id.
128. 543 U.S. 220 (2005).
129. Id. at 245 (excising 18 U.S.C. §§ 3553(b)(1), 3742(e) (Supp. 2004)).
130. See, e.g., United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
131. 407 F.3d 162 (3d Cir. 2005) (en banc).
132. See id. at 165-66.
133. United States v. Penzera, 166 F. App'x 637, 638-39 (3d Cir. 2006).
134. See Quin M. Sorenson, The Illegality of Resentencing, 44 DUQ. L. REV. 211, 222 n.68 (2006) (reporting the number of BOOKER cases disposed of by remand in the twelve months after Booker at approximately 1100).
135. See Michael W. McConnell, The Booker Mess, 83 DENV. U. L. REV. 665, 667 (2006) ("Pipeline cases are cases in which the defendant was sentenced prior to Booker but the case was not yet final, usually because it was on appeal. Because the Supreme Court held that the Booker decision must be applied to all cases on direct review, the pipeline cases had to be reconsidered, because in all of them the district court treated the Guidelines as mandatory." (footnote omitted)).
136. For example, the Third Circuit adopted a remedy of automatic remand for resentencing, with certain narrow, enumerated exceptions (like a statement on the record by the pre-Booker sentencing judge that the sentence would be the same regardless of how Booker was resolved). See, e.g., United States v. Hill, 411 F.3d 425, 426 (3d Cir. 2005);
137. Davis, 407 F.3d at 166. The Seventh Circuit, however, adopted a case-by-case policy of remand for hearings to determine whether the sentence would have been the same.
138. See, e.g., United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). That is, the Third Circuit adopted a presumption of error, while the Seventh Circuit did not. Each circuit's decision to adopt one or the other remedy was, as an initial matter, underdetermined by Booker itself. But within each circuit, subsequent appeals based solely on the pre-Booker sentencing date (appeals in which the only error alleged was sentencing under the mandatory Guidelines) really are determined, in the strongest sense of that term.
139. I use the past tense because the Booker pipeline cases have almost all been decided.
140. United States v. Lockett, 406 F.3d 207, 212-14 (3d Cir. 2005).
141. One year prior to Booker, the Supreme Court, in Blokely v. Washington, 542 U.S. 296 (2004), vacated a sentence imposed under Washington's mandatory sentencing guidelines because "[t]he facts supporting [the judge's] finding were neither admitted by [the defendant] nor found by a jury" - a violation of the defendant's Sixth Amendment right to trial by jury. Id. at 303, 301-05.
142. The Court noted that the federal guidelines were not before it, id. at 305 n.9, but the writing was on the wall.
143. The Third Circuit found that remand was unnecessary where "a District Court clearly indicates that an alternative sentence would be identical to the sentence imposed under the Guidelines" because "any error that may attach to a defendant's sentence under Booker is harmless." Hill, 411 F.3d at 426-27 (citing similar cases from other circuits).
144. An Anders brief is a brief filed by an attorney in an as-of-right direct appeal of a criminal conviction, in which the attorney states that he or she has diligently reviewed the record and cannot identify any nonfrivolous grounds for appeal. The practice was approved in Anders v. California, 386 U.S. 738 (1967), which held that an appointed appellate attorney must file such a brief when he or she concludes that there are no colorably meritorious appellate arguments.
145. An electronic search of Westlaw's U.S. Court of Appeals cases (CTA) database conducted in January 2008 reveals over two hundred Anders brief opinions issued by the circuits between January 2007 and January 2008.
146. See infra Part II.D.
147. West, supra note 34, at 1142 (emphasis omitted).
148. id. at 1164.
149. Id. at 1143.
150. id. at 1164.
151. Two prominent examples are JIM1 HENDRIX, Star-Spangled Banner, on LIVE AT WOODSTOCK (MCA Records 1999) (1969), and the fabulous YouTube version of Pachelbel's Canon in D Major performed by the formerly anonymous guitarist Funtwo, see YouTube, guitar, www.youtube.com/watch?v=QjA5faZF1A8 (last visited Jan. 26, 2008).
152. The electric guitar-bass-drums instrumentation, the verse-chorus-bridge structure, the roughly three-minutes-length constraint, the love-breakup- rebellion thematic universe, the unaugmented-power-chord harmonic vocabulary, the 4/4 backbeat rhythm, and the acceptable auxiliary instruments (keyboards, saxophone).
153. Most of the basic structures and constraints that inform modern criminal practice are of startlingly recent origin. For example, the application of the exclusionary rule to state law enforcement officers dates from 1961. See Mapp v. Ohio, 367 U.S. 643 (1961). The right of indigent felony defendants to publicly funded counsel at trial dates from 1963,
154. see Gideon v. Wainwright, 372 U.S. 335 (1963), as does the right of indigent defendants to publicly funded counsel for as-of-right appeals,
155. see Douglas v. California, 372 U.S. 353 (1963). The requirement that prosecutors turn over all evidence favorable to criminal defendants also dates from 1963.
156. See Brady v. Maryland, 373 U.S. 83 (1963). The requirement that suspects be informed at arrest of their right to remain silent and their right to counsel dates from 1966.
157. See Miranda v. Arizona, 384 U.S. 436 (1966). The modern "reasonable expectation of privacy" framework for Fourth Amendment analyses dates from 1967.
158. See Katz v. United States, 389 U.S. 347 (1967).
159. Two good reflections on the Warren Court's "criminal procedure revolution" and its shortcomings are William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE LJ. 1 (1997),
160. and Corinna Barrett Lain, Countermajoritarian Hero or Zero? Rethinking the Warren Court's Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361 (2004). As a final dramatic example of the instability of criminal procedure, on January 12, 2005, the procedure by which every single federal criminal defendant had been sentenced for the previous two decades was held unconstitutional.
161. See United States v. Booker, 543 U.S. 220 (2005);
162. see also supra Part I.C.2.
163. That is, pop culture has a strong underlying stare decisis principle overlaid with a heavy dose of revolutionary rhetoric. To pursue the constitutional analogy, you might say that recent popular culture is, in that respect, the inverse of recent constitutional theory, in which revolutionary constitutional innovations are cloaked in the rhetoric of continuity with the past. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 952 (1992) (Scalia, J., dissenting).
164. ROBERT MCKEE, STORY: SUBSTANCE, STRUCTURE, STYLE, AND THE PRINCIPLES OF SCREENWRITING (1997). This work has undoubtedly exerted a significant influence on the structure of modern movie plots, as Robert McKee has, for decades, taught screenwriting seminars that a substantial percentage of working screenwriters have attended.
165. Id. at 80.
166. Id. at 80-86.
167. See id. at 89.
168. Id. at 87.
169. The novelist Raymond Chandler explains that the hero of a detective story must have no personal side at all: He has an office, not an apartment; a secretary, not a wife. THE RAYMOND CHANDLER PAPERS: SELECTED LETTERS AND NONFICTION, 1909-1959, at 259 (Tom Hiney & Frank MacShane eds., 2002).
170. MCKEE, supra note 102, at 90 ("Having told our filmgoers to expect a favorite form, we must deliver as promised. If we botch genre by omitting or misusing conventions, the audience knows instantly and badmouths our work."). I challenge the reader to name a Hollywood thriller in which the bad guy does not in some way threaten the hero's loved one. The implication that the hero would not be adequately motivated without a threat to or the loss of the beloved has a good pedigree, coming as it does from Homer (Achilles and Patroclus in the Iliad). The reader may ponder at leisure whether the prevalence of this trope reflects an ambivalence in individualistic Western audiences about the normative status of sacrifice for the common good.
171. A "caper" is a movie in which a criminal is the protagonist, or co-protagonist along with the cop trying to catch him. The story is told at least partly from the criminal's point of view, and the plot revolves around the clever means he employs to succeed in his plot and escape capture. Ocean's Eleven, in its original or remade incarnation, is an obvious example of the genre, with its focus solely on the crooks. See OCEAN'S ELEVEN (Warner Bros. Pictures 1960); OCEAN'S ELEVEN (Warner Bros. Pictures 2001). Inside Man, another recent pure caper, splits its perspective between crook and cop. See INSIDE MAN (Universal Pictures 1995).
172. See MCKEE, supra note 102, at 92-93. Historical dramas sometimes cannot resist incorporating thriller elements, like the making it personal trope. Does Mel Gibson, for example, actually think that William Wallace would not have gotten involved in the Scottish rebellion if the English magistrate had not killed his wife?
173. See BRAVEHEART (Paramount Pictures 1995).
174. CAPE FEAR (Universal Pictures 1991).
175. HEAT (Warner Bros. Pictures 1995).
176. How do you tell pop culture NPOs from pop culture precedent? Here's how: Can you construct a set of simple rules, instantiated by prior representative examples, the operation of which will yield the cultural artifact in question? Appendix 1 includes, as an example, rules for a standard NPO country song. See infra app. 1. The process by which you will test my rules by applying them to your own experience as a music fan is precisely the process by which judges and clerks classify cases as easy or hard, familiar or novel, and the more utterly generic, rule-embodying, radio-ready country music you have experienced (for good or ill), the more ably you will evaluate new songs and decide in a given case whether to apply or modify the rules.
177. TRAINING DAY (Warner Bros. Pictures 2001).
178. METRO (Touchstone Pictures 1997). I chose Metro more or less at random from the panoply of bad buddy-cop movies. The film astonishes with its utter lack of originality in any respect. Even Roger Ebert, who was, as usual, far too generous, complained that the genre conventions were ill-used because the script runs through the customary first-act setups, but forgets to pay them off in the second act. Ebert did not mind, though, because at least the omissions shortened the film's running time: "Perhaps it is even a good thing that this is the first cop buddy movie that uses all the cliches from the first half of the formula and none from the second. It's not like I missed them."
179. Roger Ebert, Cut to the Chase; 'Metro' Thrives on Thrills, Not Story Line, CHI. SUN-TIMES, Jan. 17, 1997, at 31. Variety similarly lamented the "predictable script, cliched characters and perilous scenes[, which] come off like an assemblage of TV police episodes."
180. Howard Feinstein, 'Metro' Boasts Murphy Multiplicity, VARIETY, Jan. 13-19, 1997, at 151.
181. ARISTOTLE, Poetics, in BASIC WORKS OF ARISTOTLE 1455 (Richard McKeon ed., 1941).
182. See id.
183. We can imagine the Poetics being written in the context of, say, a trademark case, in which two companies with similar marks each agreed not to infringe on the other's mark by entering its commercial field. If one company achieves a commercial success, which the other company claims crossed the line and violated the agreement, the court is then forced to delineate the boundary between them. One recent example is the dispute between Apple, the computer company, and Apple Corps, the Beatles' distribution company, over the meaning of "music." The computer company, the junior user of the mark, had agreed not to enter Apple Corps' business by selling music, but it subsequently found a profitable market selling digital downloads of music for its computers and MP3 players. Is it selling "music" or "lines of code"? Sadly, we will not get a decision on this question, because the parties settled. See, e.g., Robert Verkaik, Beatles Downloads Beckon as 25-Year Dispute Ends, INDEPENDENT, Feb. 6, 2007, at 15.
184. See WALTER KAUFMANN, TRAGEDY AND PHILOSOPHY 62-63 (1968). Kaufman thought that Aristotle overgeneralized from a few of his favorite plays and ignored others that did not quite fit, and that he venerated Sophocles and disdained Euripides.
185. Id. at 72-73.
186. To take one of Kaufman's examples, Oedipus at Colonus is surely a tragedy - it was written by Sophocles, it was performed at the yearly tragic festival, and it includes Oedipus as the main character - but it fits none of Aristotle's generative rules. See id. at 232-41.
187. See, e.g., ARTHUR C. DANTO, THE PHILOSOPHICAL DLSENFRANCHISEMENT OF ART (1986);
188. ARTHUR C. DANTO, THE TRANSFIGURATION OF THE COMMONPLACE: A PHILOSOPHY OF ART (1981);
189. Leslie Graves, Transgressive Traditions and Art Definitions, 56 J. AESTHETICS & ART CRITICISM 39 (1998) (analyzing a number of trends in twentieth century art as self-consciously transgressive of prevailing aesthetic norms).
190. I think that the development of this aesthetic sense, this belief in the law as a real and coherent entity, is a good thing. I do not think a society founded on the denial of the reality of rules as such is either a possibility or an ideal. But, then, I am a practitioner of the law, and cannot be expected to hold such a view of society. As the French literary theorist Pierre Bourdieu eloquently put it: The specific property of symbolic power is that it can be exercised only through the complicity of those who are dominated by it. . . . As the quintessential form of legitimized discourse, the law can exercise its specific power only to the extent that it attains recognition, that is, to the extent that the element of arbitrariness at the heart of its functioning . . . remains unrecognized. The tacit grant of faith in the juridical order must be ceaselessly reproduced. . . . It is indeed necessary to relate universalization and the creation of forms and formulas.
191. Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 814, 844 (Richard Terdiman trans., 1987).
192. Ward Farnsworth recently published an illuminating empirical study of this phenomenon in the Supreme Court's criminal docket. Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, 104 MICH. L. REV. 67 (2005). He employed the intriguing methodology of classifying every nonunanimous criminal case heard by the Court over the last fifty years as constitutional or nonconstitutional and comparing the voting patterns - government wins or defendant wins - of each individual Justice in the two classes. Because the legal considerations in constitutional cases are different from those in nonconstitutional cases (most obviously, Congress's intent does not matter in constitutional cases), one would expect, if legal argumentation were driving outcomes, that voting patterns would differ. But, instead, Farnsworth found that the patterns were nearly identical: 94 percent of the variance in voting trends in one class could be predicted from the voting trends in the other class. Farnsworth concluded: [J]udges, like anyone, have messy interiors comprising lots of different preferences and values - clear and obscure, high and low, conscious and not. But the data and cases we have seen permit a few speculations about where on the spectrum the priors tend to lie. They suggest that the important ones do not take the form of anything so grand as clear philosophical principles of political morality; nor are they likely to be drawn from other legal materials in any comforting sense.
193. Id. at 92.
194. See Suzanna Sherry, Judges of Character, 38 WAKE FOREST L. REV. 793 (2003);
195. Lawrence B. Solum, The Aretaic Turn in Constitutional Theory, 70 BROOK. L. REV. 475 (2004).
196. Sherry, supra note 124, at 797.
197. Solum, supra note 124, at 497.
198. See KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 121-57 (1960).
199. Dan M. Kahan, Deputy Dean and Elizabeth K. Dollard Professor of Law, Yale Law School Commencement Remarks (May 22, 2006) (transcript available at http://www.law.yale.edu/documents/pdf/kahanREVISED.pdf).
200. Id.
201. See id. I think this is a worthwhile methodology in professional education; the Yoo-Goldsmith parable should become one of the defining templates of the professional responsibility canon.
202. Id. See generally JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION (2007). For more detailed accounts of the tensions and arguments within the Office of Legal Counsel (OLC),
203. see Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV. 1559, 1570-73 (2007);
204. Scott Shane et al., Secret U.S. Endorsement of Severe Interrogations, N.Y. TIMES, Oct. 4, 2007, at A1.
205. See GOLDSMITH, supra note 131, at 142-59.
206. For the full documentary history of the torture debates in the Bush Administration, see THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB (Karen J. Greenberg & Joshua L. Dratel eds., 2005), in which the Yoo memo is reproduced.
207. Kahan, supra note 128, at 38-79.
208. And to the extent that the Yoo memo reads like a right-wing CLS essay, one is forced to remark anew on the perils of teaching intelligent young people that any rule can fit any facts and any case can be decided any way.
209. Frederick Schauer's Easy Cases is probably the locus classicus of this critique. See Schauer, supra note 23, at 407.
210. The problem is that, at the moment, this positive function is overshadowed by the view of NPOs as simply the product of judges' desire to toss off sloppy opinions and to avoid careful analysis, an impression that the no-citation rules surely enhance. But the no-citation rules and the signaling function need not necessarily be conjoined. Judges Kozinski and Reinhardt are overstating the point when they suggest that without the rules, the technical classification is pointless. See Kozinski & Reinhardt, supra note 5, at 44 ("Lawyers argue that. . . we should . . . let the [NPOs] be cited as precedent. But what does precedent mean? Surely it suggests that the three judge panel subscribe not merely to the result but also to the phrasing of the disposition.").
211. Cass R. Sunstein, Problems With Rules, 83 CAL. L. REV. 953, 989 (1995).
212. Id. at 1023.
213. Michael Bérubé, Pop Culture's Lists, Rankings, and Critics, CHRON. OF HIGHER EDUC., Nov. 17, 2000, at B7.
214. See, e.g., Scott E. Gant, Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1, 47 B.C. L. REV. 705, 727 (2006) ("[T]he problem with putting judges in the position of predicting the future value and relevance of their opinions goes beyond that posed by the fallibility of judges. It is simply an impossible task to predict future value and relevance, because the information necessary for accurate forecasting does not yet exist.");
215. Joshua R. Mandell, Note, The Trees That Fall in the Forest: The Precedential Effect of Unpublished Opinions, 34 LOY. L.A. L. REV. 1255, 1291 (2001) ("It is simply impossible for a court to anticipate the value that any given opinion will have in the years to come.").
216. See, e.g., Greenwald & Schwarz, supra note 4, at 1154 n.80 ('"[It is] remarkable and unusual that although the . . . Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion.'" (quoting United States v. Edge Broad. Co., 509 U.S. 418, 425 n.3 (1993))).
217. E.g., 9TH CIR. R. 36-4.
218. See REAGAN ET AL., supra note 6, at 27.
219. Id. at 17, 22. The response rate was 89 percent.
220. Id. at 17.
221. Id. at 27.
222. Id. To be sure, there may be some small deterrent effect at the margins, where a litigant would cite a precedential opinion instead of a slightly more on-point NPO because the NPO is an NPO, but the data do not support the conclusion that this effect is significant.
223. Id. at 60.
224. The Second, Seventh, Ninth, and Federal Circuits. Id. at 10.
225. Id. at 60.
226. The First, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits. Id. at 7.
227. Id. at 60.
228. The Third, Fifth, and D.C. Circuits. Id. at 7.
229. There is one lacuna in the data: The percentage of total cases with at least one NPO citation was stratified by circuit, but the percentage of total citations that were NPO citations was not stratified by circuit. Thus, it is at least theoretically possible that while the percentage of cases with at least one NPO citation was the same, the permissive circuits had higher percentages of NPO citations among the cases that cited NPOs. However, that seems unlikely. The data show almost exactly thirty citations per case, which (at an overall rate of 1.5 percent NPO citations) would imply an average of about half an NPO citation (0.45) per case. Id. at 27. But because NPO citations appeared at all in only one-third of the cases, an average of about 1.33 NPO citations per case appeared in the cases that cited them at all. Given that every case in the set has to have at least one citation, the average is very close to the minimum possible value, which would tend to suggest the absence of significantly higher outliers. Of course, there were only three permissive circuits, so while it is possible that there was a difference, the data give us no reason to think so, or to think that it would be a large difference. After all, nearly 73 percent of cases in the permissive circuits cited no NPOs at all - a higher percentage than in the restrictive or discouraging circuits. Id. at 60. One would have to imagine that while fewer briefs in the permissive circuits used NPOs at all, those that did used more of them, and 1 see no reason to imagine that.
230. Id.
231. Id. at 20.
232. Id. at 94. One attorney who favors free citation said, "I think that most opinions should be published and that the issuance of non-precedential decisions is hard to justify, but I honestly do not think that this case [referring to the case for which he was selected for the survey] would give much guidance to anyone."
233. Id. at 79-80. Another said, "The ability to cite the unpublished decision could facilitate our presentation of the argument in such an occasional situation. But many times I find that the unpublished decision is cumulative to many other published decisions on the same or similar point."
234. Id. at 80. Another, in a permissive circuit, noted that she "can cite unpublished cases from other circuits freely now, but I do it in only one or two appeals each year." Id. at 93. An attorney in another permissive circuit "[had] never had occasion to cite or rely on an unpublished opinion."
235. Id. at 87. And another: "I have rarely found unpublished court of appeals cases helpful. My experience is that unpublished opinions are unpublished for a reason; i.e., either there is nothing remarkable about the case or the opinion is not worthy as precedent."
236. Id. at 97. And finally: "I do not believe that permitting the citation of unpublished opinions would have an appreciable impact, because the occasions where I have wanted to cite such a decision have been so few."
237. Id. at 97. It is worth noting that these are the comments of attorneys who favor a broader citation rule.
238. See supra note 142.
239. See REAGAN ET AL., supra note 6, at 27.
240. See Law, Judicial Ideology, supra note 11;
241. Law, Strategic Judicial Lawmaking, supra note 11.
242. The scrutiny-avoidance hypothesis argues that "judges may seek to shield questionable decisions from scrutiny by refusing to publish them. Because they lack precedential effect, unpublished decisions are unlikely to arouse the attention of busy colleagues or attract en banc review." Law, Judicial Ideology, supra note 11, at 213.
243. The precedent-steering hypothesis is that unanimous panels reaching ideologically unpalatable decisions may decide not to publish them in order to avoid steering precedent in that direction; or on divided panels, the minority judge may engage in "precedent bargaining," agreeing to go along with the result as long as it is an NPO. Id. at 213-14.
244. Id. at 212.
245. Id. at 218-19.
246. Id. at 217.
247. Id. at 219.
248. Id.
249. Query whether, in this context, there is much difference between Judge Arnold's claim that there is a constitutional obligation to create binding precedent in each case and the claim that there is a constitutional obligation to reach every issue raised by the parties. Compare Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir. 2000),
250. with Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. APP. PRAC. & PROCESS 219, 226 (1999). To be sure, one can analytically distinguish the two scenarios. But as to the constitutional rights of the parties, it is difficult to see how an individual could have a right to a judicial action that does not affect his particular case - whether it is the creation of a binding precedent or judicial resolution of a nondispositive issue.
251. To take one example, in United States v. Couto, 311 F.3d 179 (2d Cir. 2002), the court was faced with an immigrant who had pled guilty to a criminal charge and then later sought to withdraw her guilty plea because her attorney had misadvised her about the immigration consequences of her plea.
252. Id. at 184. The trial court refused her request, and on appeal, she raised two claims: (1) The trial court should have let her withdraw the plea because her attorney had been constitutionally ineffective,
253. id. at 187; and (2) the court should have informed her of the consequences before she accepted the plea,
254. id. at 190. The former is a constitutional issue; the latter, an interpretation of Rule 11 of the Federal Rules of Criminal Procedure. Which should the court decide? Or should it decide both? The court decided the constitutional claim,
255. id. at 191, holding that misrepresentation of immigration consequences can constitute ineffective assistance, and did in this case, but demurred on the Rule 11 claim, calling it "persuasive" and "deserving of] careful consideration," but declining to decide it,
256. id. at 190. Why decide one rather than the other? One obvious reason is that an ineffective assistance claim is a case-specific, fact-intensive determination, while a Rule 11 interpretation would create a new rule that all district courts would have to follow. If we could pull aside the veil, I would guess that at least one member of the panel thought that the court ought to announce a Rule 11 requirement, at least one member thought it should not, and the ineffective assistance holding was a compromise that achieved the desired result for the litigant without setting a binding rule (though of course Couto is precedent for the possibility of an ineffective assistance claim based on collateral immigration consequences). How is this functionally any different from issuing an uncitable, nonbinding Rule 11 NPO (saying that, in this case, the Rule 11 colloquy was deficient, but the case has no precedential value)?
257. See, e.g., Cham v. Att'y Gen., 445 F.3d 683 (3d Cir. 2006) (reversing an adverse credibility determination by Donald Ferlise, an IJ who was repeatedly found by appellate courts to have manufactured contradictions in immigrants' testimony and to have ignored relevant evidence);
258. Guan Yu Lin v. Att'y Gen., 183 F. App'x 150 (3d Cir. 2006) (same).
259. In Bush v. Gore, 531 U.S. 98 (2000) (per curiam with separate opinions by all but Justices Kennedy and O'Connor), for example, the majority notoriously tried to declare the case to be nonprecedential,
260. see id. at 109, and, so far, it seems to be working: Equal protection challenges to local disparities in voting technology have not yet been able to successfully invoke it as a precedent. Despite early hope from some commentators,
261. see, e.g., Edmund S. Sayer, Note, "Arbitrary and Disparate" Obstacles to Democracy: The Equal Protection Implications of Bush v. Gore on Election Administration, 19 J.L. & POL. 299 (2003), it has not happened. For a recent overview of subsequent litigation and possibilities,
262. see, for example, Chad Flanders, Comment, Bush v. Gore and the Uses of "Limiting," 116 YALE L.J. 1159 (2007). For an example of an early and failing effort to apply Bush v. Gore in an election case,
263. see Green Party of New York v. Weiner, 216 F. Supp. 2d 176, 192 (S.D.N.Y. 2002) (rejecting the argument that "the Court's reasoning [in Bush v. Gore] broadens the constitutional protection afforded to voting rights by precluding different procedures for tabulating votes").
264. The closest that plaintiffs raising an equal protection challenge have yet come to prevailing on a Bush v. Gore argument was Stewart v. Blackuiell, 444 F.3d 843 (6th Cir. 2006), in which a divided Sixth Circuit panel decided that Bush v. Gore prohibited the State of Ohio from holding elections in which a variety of different-and differently reliable-technologies were used to count votes.
265. Id. The decision was vacated pending en banc review, and the en banc court dismissed the case as moot. Stewart v. Blackwell, 473 F.3d 692 (6th Cir. 2007) (en banc).
266. By which I mean that one cannot both engage in the practice of law and believe that judges do not, as a rule, act in good faith.
267. See supra notes 137-138 and accompanying text.
268. For an insightful meditation on this aspect of professional development, see Brett G. Scharffs, Law as Craft, 54 VAND. L. REV. 2245, 2324-42 (2001).
269. Greenwald & Schwarz, supra note 4, at 1168. As of this writing, some circuits appear to be moving in this direction, at least informally. See United States Court of Appeals for the Second Circuit, Decisions, http://www.ca2.uscourts.gov/opinions.htm (last visited Jan. 2, 2008) (summary orders are unsigned);
270. United States Court of Appeals for the Third Circuit, Non Precedential Opinions (Last 30 Days), http://www.ca3.uscourts.gov/recentop/ week/recnonprec.htm (last visited Jan. 2, 2008) (nonprecedential opinions are usually unsigned);
271. United States Court of Appeals for the Fifth Circuit, Opinions Page, http://www.ca5.uscourts.gov/opinions.aspx (last visited Jan. 2, 2008) (nonprecedential opinions are unsigned);
272. United States Court of Appeals for the Ninth Circuit, Unpublished Dispositions, Log of Memoranda and Orders, http://www.ca9.uscourts.gov/coa/ memdispo.ndf (last visited Jan. 2, 2008) (memoranda are unsigned).
273. In at least some circuits, however, this policy is not uniformly followed. Compare, e.g., United States v. Carson, No. 06-4847 (3d Cir. Nov. 5, 2007) (signed NPO) (Nygaard, J.), with, e.g., Black v. Warden, No 07-3211 (3d Cir. Nov. 5, 2007) (unsigned NPO) (per curiam).
274. The revivification of appellate oral opinions is a great idea, one that would preserve the NPO-precedential signaling function while recapturing the theatricality and judge-like pomp of oral delivery from the bench, "put[ting] a face on justice and . . . giv[ing] it a voice." Greenwald & Schwarz, supra note 4, at 1173.
275. Id. at 1169-70.
276. Pearson, supra note 10, at 1306.
277. Id. at 1303.
278. For a model of such a form, see infra app. 2.
279. See, e.g., Kozinski & Reinhardt, supra note 5, at 44.
280. See supra Part I.C.
281. Consider, for example, a recent asylum NPO from the Eleventh Circuit, Garcia v. Attorney General, 217 F. App'x 855 (11th Cir. 2007). Not only does this opinion run to ten pages as printed in the Federal Appendix and include a vigorous dissent, but it also concerns a pressing and uncertain area of the law: the application of the asylum statute to people who are threatened by armed nongovernmental factions in countries not experiencing an officially denominated civil war. In this case, the claimant had fled Colombia because of threats from a leftist guerilla group that had demanded that she pay a "war tax."
282. Id. at 857. The majority engaged in a lengthy analysis of the facts and case law and concluded that the refusal to pay a guerilla group does not constitute the expression of political opinion, but merely of economic self-interest.
283. Id. at 859. This is a potentially wide-reaching holding because, as the dissent points out, most of the world's social conflict revolves around economic class: In Colombia, which is wracked by violent divisions based on class, and where Marxist groups subscribe to a political ideology that is explicitly based on class, cattle-ranchers and landowners face socially and politically motivated violence as well as financial extortion. . . . We undermine the purpose of those laws when we deny asylum to those whose political opinions happen to be aligned with their personal safety.
284. Id. at 863-64 (Barkett, J., dissenting). This decision could not possibly have been expressed within the heuristic constraints of a form, and the attempt to make it fit would have immediately impressed upon the panel the need for publication.
285. Jessie Allen, Blind Faith and Reasonable Doubts: Investigating Beliefs in the Rule of Law, 24 SEATTLE U. L. REV. 691 (2001).
286. Id. at 709.
287. Id. at 714.
288. Id. at 713. In my opinion, however, Jackson Pollock is not the best example here. For rigor of formal constraints among abstract expressionists, Pollock is much less of an exemplar than, for example, Joseph Albers.
289. See H.W. JANSON & ANTHONY F. JANSON, HISTORY OF ART 823 (6th ed. 2001) ("Albers devoted the latter part of his career to color theory. Homage to the Square, his final series, is concerned with subtle color relations among simple geometrical shapes, which he reduced to a few basic types. Within these limits, he was able to invent almost endless combinations based on rules he devised through ceaseless experimentation.").
290. Allen, supra note 183, at 713.
291. Id. at 718.
292. For example, in oral argument for one trademark case I observed as a clerk, a white lawyer argued to a black judge that "the word 'freedom' has an almost religious significance to African-Americans." The comment was not derived from the record and the judge was not impressed.
293. For some colorful examples, see Lawrence v. Texas, 539 U.S. 558, 567 (2003) (Kennedy, J.) ("When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.");
294. Gristvold v. Connecticut, 381 U.S. 479, 484 (1965) (Douglas, J.) ("[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.");
295. Buck v. Bell, 274 U.S. 200, 207 (1927) (announcing, through Justice Holmes, that "[t]hree generations of imbeciles are enough").
296. Some of the most interesting discussions of this dynamic have come in the context of judicial and academic criticism of Judge Posner's self-described "pragmatic" decisionmaking methodology, whereby he first decides what outcome he thinks is "reasonable," and only then asks what the applicable legal rules are (and only to determine whether there are any bright-line rules that flatly prohibit the outcome he would like to reach). See supra note 24. Posner has suggested that this is really the method employed by all appellate judges, but, not surprisingly, other judges have demurred from that assessment. For one good recent commentary, see Posting of Brian Tamanaha, supra note 24.
297. David Luban, The Art of Honesty, 101 COLUM. L. REV. 1763, 1767 (2001)
298. (reviewing LAWRENCE JOSEPH, LAWYERLAND (1997)).
299. CHARLIE DANIELS BAND, The Devil Went Down to Georgia, on MILLION MILE REFLECTIONS (Sony 1979) (notable for its spoken melody, minor resolution, and multiple melodic elements);
300. see also BIG & RICH, Save a Horse, Ride a Cowboy, on HOUSE OF A DIFFERENT COLOR (Warner Bros./Wea 2004).
301. TRAINING DAY, supra note 114 (precedent making for the use of a dominant black partner who turns out to be the bad guy).
302. UNFORGIVEN (Warner Bros. Pictures 1992) (notable because the hero's motivation is money, the hero shoots first, and the hero unapologetically shoots an unarmed man).
303. E.g., GEORGE GERSHWIN, Rhapsody in Blue, on GERSHWIN PLAYS RHAPSODY IN BLUE (Shout Factory 2003) (1924) (groundbreaking for its extensive improvisation by a soloist in a classical concerto format).
304. See THE OTHER SIDE OF THE MIRROR: BOB DYLAN LIVE AT THE NEWPORT FOLK FESTIVAL 1963-65 (Sony 2007) (1965) (introducing the use of electric instruments in folk music).
305. On this theme, see Bérubé, supra note 139 (meditating on the cultural significance of "best of lists and our compulsion to continually make and reorder them).
306. Frederick Schauer has made similar remarks, in a different context, on the pitfalls of refusing to treat law as culture: Recent legal scholarship . . . indicates that a latent literary or art critic lurks within many law teachers. Dealing with cases, we law teachers have an ideal opportunity to play that role, but most of us squander the opportunity. Instead of seeing what can be done with a case, we devote our efforts to attacking it. We make snide and dismissive remarks about cases and their authors, rather than treating a case as the raw material from which theories, insights, and creative interpretations might be spun. . . . Imagine a course in modern art that started with a study of the fundamental errors committed by Manet, moved on to a broadscale assault on the Impressionists, Post-Impressionists, and Expressionists, poked holes in the work of Picasso, Bracque, and Gris, and then closed with a sarcastic attack on contemporary art from Pollock to Rothko, in the course of which never once praising unqualifiedly any painting, and never once saying that any painting or painter was really great. If this seems odd, and it does to me, then why is almost that exact style so commonplace in dealing with constitutional law? Schauer, supra note 23, at 434 n.91.
307. Duncan Kennedy, The Political Stakes in "Merely Technical" Issues of Contract Law, 10 EURO. REV. PRIVATE L. 7, 8 (2001).
308. Solum comments wryly that [i]f one believes that the rules are strongly determinate, but fundamentally wrong, one is left with very little room to maneuver within the limited horizons of legal scholarship. The notion that it is possible to achieve radical results working with the existing body of legal doctrine - because the seeming constraints are illusory - has powerful attraction for those committed to social change, but whose professional lives are confined to the academy and not the capitol buildings. Solum, supra note 36, at 497.
309. The use of diminished chords is a clear indicator that the Eagles' "Desperado," despite its title and subject matter, is not a country song. See EAGLES, Desperado, on DESPERADO (Asylum 1973).
310. Minor resolutions are disfavored rather than prohibited to accommodate the occasional minor-resolution hit. E.g., ALAN JACKSON, Midnight in Montgomery, on DON'T ROCK THE JUKEBOX (Arista Records 1991).
311. Or, as in, for example, Kenny Rogers' "The Gambler," at the song's midpoint. See KENNY ROGERS, The Gambler, on THE GAMBLER (United Artists 1978).
312. I concede that you might hear a Hammond organ now and then on country radio, but I do not think it happens enough to change the rule, which reflects the unchallenged proposition that the Hammond is a rock instrument (subsequently imported into jazz). The status of the Hammond in country music is quite fraught, even among lawyers. See, e.g., Posting of Silicon Valley Jim to the Volokh Conspiracy, http://www.volokh.com/posts/ 1149197032.shtml (June 1, 2006, 18:09 PST) (protesting the use of the Hammond in the Dixie Chicks' latest album).
313. The Dixie Chicks do not provide an appropriate counterexample to this rule. The Chicks themselves strenuously insist on their absolute fidelity to the rule. The conflict is instead a definitional dispute over the meaning of some of the terms in 4(c). (Alternatively, one might argue that the Chicks have moved out of the country genre altogether. As to their recent album, tour, and Grammy triumph, this argument probably has merit.)
314. This is a principle not lost on country artists themselves. E.g., DAVID ALLAN COE, You Never Even Called Me by My Name, on 17 GREATEST HITS (Sony 1990).
315. Yulianty v. Att'y Gen., 186 F. App'x 331 (3d Cir. 2006).