The Anastasoff case and the judicial power to "unpublish" opinions

Notre Dame Law Review

Volumn 77, Issue 1, 2001, Pages 135-173

  Lee, Thomas R ^a   Lehnhof, Lance S ^b  

^a BRIGHAM YOUNG UNIVERSITY   (United States)

^b NONE

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EID: 4344713378     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (215)

1. See Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000).
2. See id. at 899.
3. Christie v. United States, No. 91-2375MN, 1992 U.S. App. LEXIS 38446, at *7-*8 (8th Cir. Mar. 20, 1992) (per curiam) (unpublished).
4. Anastasoff, 223 F.3d at 899 (quoting 8TH CIR. R. 28A(i)). Unpublished opinions are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well. A party who cites an unpublished opinion for the first time at oral argument must attach a copy of the unpublished opinion to the supplemental authority letter required by FRAP 28 (i). When citing an unpublished opinion, a party must indicate the opinion's unpublished status. 8TH CIR. R. 28(A)(i).
5. See Anastasoff, 223 F.3d at 899.
6. See id.
7. See id. at 905 ("The judicial power of the United States is limited by the doctrine of precedent. Rule 28A(i) allows courts to ignore this limit . . . . This discretion is completely inconsistent with the doctrine of precedent . . . . Insofar as it limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional.").
8. See id. at 900 ("[W]e conclude that 8th Circuit Rule 28A(i), insofar as it would allow us to avoid the precedential effect of our prior decisions, purports to expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional.").
9. See, e.g., Howard J. Bashman, A Closer Look: The Unconstitutionality of Non-Precedential Appellate Rulings, LEGAL INTELLIGENCER, Dec. 11, 2000, at 7, 7 ("Judge Richard S. Arnold . . . has in that decision presented an impeccably reasoned explanation of why the U.S. Constitution prohibits federal appellate courts from denying precedential effect to their opinions.")
10. [hereinafter Bashman, A Closer Look];
11. Howard J. Bashman, 3rd Circuit Should Use Judgment Orders - Wisely, LEGAL INTELLIGENCER, Jan. 8, 2001, at 9, 9 ("I continue to believe that the 8th Circuit correctly concluded that federal appellate courts lack the power to deny precedential effect to their unpublished opinions.");
12. David R. Fine, Keeping Mum Kills Precedents, NAT'L L.J., Feb. 19, 2001, at A21 ("Judge Arnold's constitutional analysis, which will surely be resurrected in some other case, was right.");
13. William P. Murphy, 8th Circuit Panel Declares Unpublished Opinions Precedential, PA. L. WKLY., Sept. 18, 2000, at 13 (arguing that Anastasoff sent the message that there is one body of judicial law and stare decisis applies universally);
14. Roger Parloff, Publication Rights, AM. LAW., Oct. 2000, at 15, 15 ("[T]he animating force behind Judge Arnold's ruling was the simple recognition that technological improvements - specifically, the now universal availability of online law libraries and databases - have supplied us with a literal deus ex machina that solves the quandary posed by unpublished opinions.").
15. See, e.g., Recent Cases, 114 HARV. L. REV. 926, 943 (2001);
16. Swift En Banc Review Expected of Case Treating Unpublished Opinions as Precedent, 69 U.S.L.W. (BNA) No. 15, at 2227, 2227-29 (Oct. 24, 2000) (debating the significance of the Anastasoff decision). The Eighth Circuit's conclusion regarding the bounds of Article III finds little support in either history or practice. Although the court asserted that the doctrine of precedent is implicit in the declaratory theory, it produced scant evidence that the Framers relied on the explicit theory, let alone on the implicit doctrine, when drafting the Constitution. Recent Cases, supra at 243.
17. See Anastasoff v. United States, 235 F.3d 1054, 1056 (8th Cir. 2000) (en banc) (noting that the IRS's payment of Ms. AnastasofFs $11,437.32 refund had rendered the case moot).
18. Judge Arnold's en banc opinion indicated that "[t]he controversy over the status of unpublished opinions is, to be sure, of great interest and importance, but this sort of factor will not save a case from becoming moot." Id. Arnold's comments indicate an interest on his part - and perhaps on the part of other judges in the Eighth Circuit - to revisit the issue in an appropriate case. In an even more recent opinion, Judge Arnold specifically recognized the fact that the court had no opportunity to apply the Anastasoff rationale in regard to Arkansas Supreme Court Rule 5-2, limiting the precedential effect of unpublished opinions. See Rogerson v. Hot Springs Adver. & Promotion Comm'n, 237 F.3d 929, 931 n.2 (8th Cir. 2001).
19. See D.C. CIR. R. 28(c) (prohibiting the citation of unpublished opinions, orders, or other dispositions except to establish the binding or preclusive effect of the disposition); 1ST CIR. R. 36(b)(2)(F) (prohibiting citation to unpublished opinions in all "unrelated cases," presumably meaning only to assert res judicata, collateral estoppel, or the law of the case); 2D CIR. R. § 0.23 (allowing judges to make oral opinions from the bench, providing for the transcription of such opinions, and yet prohibiting the citation of such opinions in "unrelated" cases); 3D CIR. R. IOP 6.2.1 (stating that a "judgment order" [the functional equivalent of an unpublished opinion] has no precedential or institutional value); 4TH CIR. R. 36(c) (stating that citation to unpublished opinions is disfavored, but nevertheless permissible when there is no published opinion on point); 5TH CIR. R. 47.5.3 (stating that "unpublished opinions issued before January 1, 1996 [the effective date of the amended rule] are precedent," but noting that since "every opinion believed to have precedential value is published, such an unpublished opinion should normally be cited only when the doctrine of res judicata, collateral estoppel or law of the case is applicable"); 5TH CIR. R. 47.5.4 ("[U]npublished opinions issued on or after January 1, 1996 are not precedent, except for the res judicata, etc., but may be cited as persuasive authority."); 6TH CIR. R. 206 (c) (stating only that published opinions are binding on subsequent panels but may not overrule them without en banc consideration; no apparent limitations on citation of unpublished opinions, although they might not be treated as binding); 7TH CIR. R. 53 (b) (2) (iv) & 53 (e) (stating that a court may dispose of an appeal by an . unpublished order or a published opinion; unpublished orders may only be cited for purposes of establishing res judicata, promissory estoppel or law of the case, whereas published opinion may be cited without limitation as precedent; also prohibiting citation of unpublished opinions or orders from any court if that court prohibits its citation); 8TH CIR. R. 28A(i) (stating that unpublished opinions are not precedent and that parties should not cite them, except that they may be cited to show res judicata, collateral estoppel, law of the case, and "if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well"); 9TH CIR. R. 36-3(a) to (b) (stating that any disposition that is not an opinion or order designated for publication is not precedent and should not be cited except to show res judicata, etc.); 10TH CIR. R. 36.3(A)-(B) (stating that unpublished opinions are not precedent and may only be cited to show res judicata, etc., or if it has persuasive value, with respect to a material issue that has riot been addressed in a published opinion, "and it would assist the court in its disposition"); 11TH CIR. R. 36-2 (stating that unpublished opinions are not precedent but may be cited as persuasive authority); FED. CIR. R. 47.6(b) (prohibiting citation to opinions "designated as not to be cited as precedent" unless it is to assert claim preclusion, issue preclusion, etc.). For a summary of the various rules, see Martha J. Dragich, Will the Federal Courts of Appeals Perish If They Publish? Or Does the Declining Use of Opinions To Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 AM. U. L. REV. 757, 762 n.17 (1995);
20. Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals, 54 VAND. L. REV. 71, 75-79 (2001).
21. See Anastasoff v. United States, 223 F.3d 898, 899-900 (8th Cir.), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000); see also infra Part III.B.2.
22. The HARVARD LAW REVIEW'S "Recent Cases" series recently devoted a few pages to Anastasoff. See Recent Cases, supra note 10, at 940-46. This piece identifies, but does not analyze in any detail, the question whether the Framers would have condemned a departure from precedent in the manner authorized by Rule 28A(i).
23. See, e.g., Bashman, A Closer Look, supra note 9, at 7-8 (explaining that "Judge Richard S. Arnold . . . has in that decision presented an impeccably reasoned explanation of why the U.S. Constitution prohibits federal appellate courts from denying precedential effect to their opinions," but nevertheless focuses on the implications of the ruling for the Third Circuit, rather than the historical constitutional issues);
24. J. Wylie Donald & Pamela Keyl, Practicalities of Unpublished Decisions: Practitioners Should Expect To See Briefs Citing More Unpublished Decisions, and Judges Paying More Attention to Them, N.J. L.J., Dec. 4, 2000, at 28 (discussing the effect of the decision on litigating attorneys); Fine, supra note 9, at A21 (arguing that "unpublished-so-nonprecedential rules" invite abuse and discretion);
25. Jeffrey Stempel, Federal Circuit Court Holds Unpublished "Nonprecedential" Judicial Opinions Unconstitutional, Igniting New Debate over the Practice, NEV. LAW., NOV. 2000, at 23 (summarizing the case and discussing the possible future effects thereof);
26. see also Steven B. Katz, California's Curious Practice of "Pocket Review", 3 J. APP. PRAC. & PROCESS 385 (2001) (criticizing limited citation rules and identifying a specific practice in California resulting from such rules);
27. J. Thomas Sullivan, Concluding Thoughts on the Practical and Collateral Consequences of Anastasoff, 3 J. APP. PROC. & PROCESS 425, 440-47 (2001) (raising questions about access to and reliance on the work product of appellate courts);
28. Stephen L. Wasby, Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish, 3 J. APP. PRAC. & PROCESS 325 (2001) (outlining the two main lines of criticism of unpublished opinions, and focusing on the process of making the decision to publish, guidelines for publication, and enforcement of those guidelines within courts);
29. Daniel B. Levin, Case Note, Fairness and Precedent - Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated on other grounds 235 F.3d 1054 (8th dr. 2000), 110 YALE L.J. 1295, 1300-02 (2001) (discussing the pragmatic issues of efficiency and equality of access).
30. See, e.g., Daniel N. Hoffman, Publicity and the Judicial Power, 3 J. APP. PRAC. & PROCESS 343 (2001) (discussing the case as raising various pragmatic concerns and as presenting an issue of separation of powers);
31. Salem M. Katsh & Alex V. Chachkes, Constitutionality of "No-Citation" Rules, 3 J. APP. PRAC. & PROCESS 287 (2001) (arguing that limited citation rules are unconstitutional as violations of the First Amendment protection of free speech and petition, and the separation of powers);
32. Melissa H. Weresh, The Unpublished, Non-Precedential Decision: An Uncomfortable legality?, 3 J. APP. PRAC. & PROCESS 175 (2001) (arguing that limited citation rules might violate substantive and procedural due process).
33. See, e.g., R. Ben Brown, Judging in the Days of the Early Republic: A Critique of Judge Richard Arnold's Use of History in Anastasoff v. United States, 3 J. APP. PRAC. & PROCESS 355, 361-83 (2001) (criticizing Arnold's argument by citing many cases from the early republic" in which courts did not adhere strictly to precedent; arguing that these examples indicate that even shordy after the adoption of Article III courts relied upon multiple sources of law, including mere custom, and that some courts even held these sources of common law to supercede statutory law);
34. Polly J. Price, Precedent and Judicial Power After the Founding, 42 B.C. L. REV. 81 (2000) (defending Judge Arnold's originalist analysis of the issue, suggesting that despite the inherent difficulties of an originalist approach and the ambiguities of history, Arnold's argument is supported . by a preponderance of the evidence standard; also challenging claims that Arnold's reasoning will prove problematic in future contexts);
35. Brian Endter, Note, Death, Taxes, and Unpublished Opinions: In the Wake of Anastasoff v. United States and Its Holding That Eighth Circuit Rule 28(A)(i) Unconstitutionally Expands the Judicial Power, 33 ARIZ. ST. L.J. 613, 624-26 (2001) (suggesting that founding-era commentators might have understood precedent to be something less strict than absolute adherence to prior cases);
36. Joshua R. Mandell, Note, Trees That Fall in the Forest: The Precedential Effect of Unpublished Opinions, 34 LOY. L.A. L. REV. 1255, 1276-84 (2001) (supporting Arnold's assertion that the Framers believed in the importance of the doctrine of precedent, although not questioning Arnold's assertion that the doctrine was well established at the time of the founding; also suggesting that some early commentators understood precedent to be something much more flexible than Arnold's strict doctrine of precedent); Recent Cases, supra note 10, at 943-44 (suggesting that Judge Arnold may not have considered sufficient sources of historical commentary and that some of that commentary might favor an alternative conception of precedent);
37. Evan P. Schultz, Gone Hunting - Judge Arnold of the 8th Circuit Has Taken Aim at Unpublished Opinions, but Missed His Mark, LEGAL TIMES, Sept. 11, 2000, at 78 (identifying historical examples of courts not bound by strict precedent).
38. See Anastasoff, 223 F.3d at 899. The amount of the refund ($6,436) is not referred to in the panel opinion, but is found in the en banc opinion. See Anastasoff v. United States, 235 F.3d 1054, 1055 (8th Cir. 2000) (en banc).
39. Anastasoff, 223 F.3d at 899; 26 U.S.C. § 6511(b) (1994).
40. See Anastasoff, 223 F.3d at 899.
41. Id.; 26 U.S.C. § 7502 (1994 & Supp. V 1999).
42. 26 U.S.C. § 7502.
43. Anastasoff, 223 F.3d at 899.
44. See id.
45. See Christie v. United States, No. 91-2375MN, 1992 U.S. App. LEXIS 38446, at *1 (8th Cir. Mar. 20, 1992) (per curium) (unpublished).
46. See id. at *7.
47. Anastasoff, 223 F.3d at 899.
48. See id. Rule 28A(i) specifically states that unpublished opinions may be cited if it "has persuasive value on a material issue and no published opinion of this or another court would serve as well." 8TH CIR. R. 28A(i).
49. See Anastasoff, 223 F.3d at 899.
50. Id.
51. Anastasoff v. United States, 235 F.3d 1054, 1055 (8th Cir. 2000) (en banc).
52. See Anastasoff, 223 F.3d at 899-904. Judge Arnold cites such historical sources as Sir William Blackstone, James Wilson, James Kent, Sir Edward Coke, Sir Matthew Hale, Alexander Hamilton, James Madison, William Cranch, and Justice Joseph Story. See id. While these sources are certainly reliable and authoritative, a careful analysis of the writings of these commentators suggests that Judge Arnold misconstrued their conception of stare decisis. See infra Part III.A.
53. Anastasoff, 223 F.3d at 900.
54. U.S. CONST. art. III, § 1, cl. 1.
55. Anastasoff, 223 F.3d at 901. Judge Arnold's historical analysis depends upon the assumption that the Framers intended the term "judicial power" to import some notion of stare decisis. But see Recent Cases, supra note 10, at 944. The Eighth Circuit's historical analysis is too cursory . . . . Notably absent from Anastasoff are discussions of the ratifying debates in any of the states and of the debates surrounding the drafting of Article III. These debates are crucial because, although one person may have drafted the language, it is ratification by the People that ultimately imbues the Constitution with legitimacy. If the court examined these debates found nothing, then what is the legitimate inference to draw from such silence? The court inferred a particular meaning because that meaning was 'in full view' of the Framers and thereby, presumably, the ratifiers. In addition to raising questions as to what constitutes 'full view,' this method of constitutional interpretation would ultimately render every historical silence pregnant with meaning. Id. (citing Anastasoff, 223 F.3d at 904).
56. Anastasoff, 223 F.3d at 900 (citations omitted).
57. Id. (footnotes omitted).
58. See id. at 902-03.
59. Id. at 902 (citing THE FEDERALIST NO. 78, at 508 (Alexander Hamilton) (Modern Library ed. 1938)). For a criticism of Judge Arnold's interpretation of Hamilton's discussion of precedent in The Federalist No. 78, see infra notes 87-91 and accompanying text. See also generally Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647 (1999) (tracing the evolution, of important strands of the Rehnquist Court's doctrine of stare decisis from foundingera treatises to early application in the Marshall and Taney Courts);
60. Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Confess Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535 (2000) (arguing that Congress could require the Court not to follow a precedent that the Court is otherwise persuaded is wrong on the merits).
61. Anastosoff, 223 F.3d at 901 n.8; see also Schick v. United States, 195 U.S. 65, 69 (1904) ("At the time of the adoption of the Federal Constitution [Blackstone's Commentaries] had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so undoubtedly the framers of the Constitution were familiar with it.").
62. See Anastasoff, 223 F.3d at 901-03. Several cases in the Eighth Circuit state that unpublished opinions need not be given precedential deference. See, e.g., Fed. Deposit Ins. Corp. v. Newhart, 892 F.2d 47, 50 n.3 (8th Cir. 1989); In re Leimer, 724 F.2d 744, 745-46 (8th Cir. 1984). Thus, under Arnold's own rule, the Anastasoff panel had no right to depart from those prior cases. Ironically, one of the cases from which the panel departed was an opinion written by Judge Arnold, in which he stated that [o]ur holding here is inconsistent with our prior unpublished decision in Ewald v. The Cornelius Co., 696 F.2d 1000 (8th Cir. 1982). In Ewald we held that the grant of relief in an adversary proceeding to lift a stay was an interlocutory order. We decline to follow this rule for several reasons. First, unpublished opinions of this Court are not intended to create binding precedent. The decision of a panel not to publish an opinion usually represents the judges' view that the case is without substantial value as precedent. Leimer, 724 F.2d at 745-46. The Anastasoff court easily could have ruled against Ms. Anastasoff and remained consistent with Leimer, since that case did not prohibit a court from following an unpublished opinion, it simply did not require the court to follow it. So it is not the result of the case that contradicts the rule, but the opinion itself, which essentially adopts the opposite rule.
63. Anastasoff, 223 F.3d at 901 (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES *69).
64. Id. at 902.
65. See id. at 902-03.
66. Id. at 901 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *69).
67. Id.
68. Id. at 901-02 ("The Framers accepted this understanding of judicial power (sometimes referred to as the declaratory theory of adjudication) and the doctrine of precedent implicit in it.").
69. See, e.g., Peter Wesley-Smith, Theories of Adjudication and the Status of Stare Decisis, in PRECEDENT IN LAW 73, 73 (Laurence Goldstein ed., 1987) (stating that the declaratory theory received its most authoritative exposition by Blackstone).
70. The evolution of the non-publication rules in the circuit courts essentially began with the 1964 Annual Report of the Director of the Administrative Office of the United Stales Courts, which suggested that the courts only publish cases that were of general precedential value. ADMIN. OFF. OF THE U.S. CTS., 1964 ANNUAL REPORT 11 (1965) [hereinafter 1964 ANNUAL REPORT]. In 1972 the Administrative Office required that every circuit adopt a publication plan. See ADMIN. OFF. OF THE U.S. CTS., 1972 ANNUAL REPORT 33 (1973) [hereinafter 1972 ANNUAL REPORT]. It was this 1972 report that resulted in the most dramatic increase in the number of unpublished opinions in the circuit courts. See Merritt & Brudney, supra note 13, at 75-79. In their study of the increase in unpublished opinions, Merritt and Brudney suggest that while until the 1970s most circuits published a majority of their opinions, by 1979 half of the circuit opinions were unpublished, and that number increased to two-thirds by 1989 and to nearly eighty percent in 2001. See id. at 75-76 (citing ADMIN. OFF. OF THE U.S. CTS., 1979 ANNUAL REPORT 344-46 tbl.B-1 (1980); ADMIN. OFF. OF THE U.S. CTS., 1989 ANNUAL REPORT 109 tbl.S-5 (1990); ADMIN. OFF. OF THE U.S. CTS., 1999 ANNUAL REPORT 49 tbl.S-3 (2000)).
71. See D.C. CIR. R. 28(c); 1ST CIR. R. 36(b)(6); 2D CIR. R. § 0.23; SD CIR. R. IOP 6.2; 5TH CIR. R. 47.5; 7TH CIR. R. 53(b)(2)(iv) & 53(e); 9TH CIR. R. 36-3; FED. CIR. R. 47.6.
72. See 4TH CIR. R. 36 (c) (stating that citation to unpublished opinions is disfavored, but nevertheless permissible when there is no published opinion on point); 6TH CIR. R. 206(c) (stating only that published opinions are binding on subsequent panels' but may not overrule them without en banc consideration; no apparent limitations on citation of unpublished opinions, although they might not be treated as binding); 8TH CIR. R. 28A(i) (stating that "[u]npublished opinions are not precedent and parties generally should not cite them," except that they may be cited to show res judicata, collateral estoppel, law of the case, and "if the opinion has persuasive value on a material issue and no published opinion of this or any other court would serve as well"); 10TH CIR. R. 36.3 (stating that unpublished opinions are not precedent and may only be published to show res judicata, etc., or if it has persuasive value, the issue has not been addressed in a published opinion, "and it would assist the court in its disposition"); 11TH CIR. R. 36-2 (stating that unpublished opinions are not precedent but may be cited as persuasive authority).
73. See supra note 50 and accompanying text.
74. 1964 ANNUAL REPORT, supra note 50, at 11.
75. Id.
76. Id.
77. 1972 ANNUAL REPORT, supra note 50, at 33.
78. See Merritt & Brudney, supra note 13, at 75-76.
79. See id. at 75 n. 13.
80. See id.; DONNA STIENSTRA, UNPUBLISHED DISPOSITIONS: PROBLEMS OF ACCESS AND USE IN THE COURTS OF APPEALS 40 tbl.2 (Fed. Jud. Ctr., Staff Paper 1985) (finding that 48.8% of decisions in 1981 were not published).
81. See Merritt & Brudney, supra note 13, at 76 (citing ADMIN. OFF. OF THE U.S. CTS., 1999 ANNUAL REPORT 49 tbl.S-3 (2000)).
82. See 1999 DIR. OF ADMIN. OFF. OF THE U.S. CTS., 1999 ANNUAL REPORT 116, 125, 130, 186 tbls.B-6, B-8, C, & D (2000), available at http://www.uscourts.gov/ judbus1999/contents.html.
83. See infra Part III.B.S.a.
84. See infra Part III.B.2 (discussing several types of judicial decisions that have historically been deprived of binding precedential effect such as district court rulings, summary dispositions, evidentially rulings and orders, etc.; illustrating that it is completely consistent with the Blackstonian view of precedent to have more than one degree of precedent).
85. The more general policy question of the value or validity of rules and policies favoring non-publication of judicial decisions has received significant attention since the circuit courts began adopting non-publication rules following the 1964 Report of the Administrative Office. Judge Arnold himself has authored one article aimed at this policy question, suggesting that his historical analysis may not be based simply on an academic or philosophical devotion to history. See Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. APP. PRAC. & PROCESS 219, 222 (1999) (discussing the general validity of non-publication rules, but specifically raising the issue of whether unpublished opinions should be treated as precedential). Ninth Circuit Judges Kozinski and Reinhardt have authored another piece addressing this policy question.
86. See Alex Kozinski & Stephen Reinhardt, Why We Don't Allow Citation to Unpublished Decisions, CAL. LAW., June 2000, at 43, 81 (expressing serious concerns about the burden that publication of all cases would place on the courts; specifically arguing that non-publication rules are necessary to ensure that judges carefully and dutifully fulfill their responsibilities, and that "[b]ased on [their] combined three decades of experience as Ninth Circuit judges, [they] can say with confidence that citation of [unpublished opinions] is an uncommonly bad idea" that not only gives some lawyers an undeserved advantage in some cases but also is damaging to the court).
87. For more on the underlying policies favoring publication or non-publication of judicial decisions, see also Charles E. Carpenter, Jr., The No-Citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy?, 50 S.C. L. REV. 235, 259 (1998) (standing for the compromise position - accepted in several circuits - that courts should "allow the citation of unpublished opinions as persuasive authority but not as binding precedent");
88. Martha J. Dragich, Will the Federal Courts of Appeals Perish If They Publish? Or Does the Declining Use of Opinions To Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 AM. U. L. REV. 757, 786-87, 791-97 (1995) (suggesting that selective publication creates an unreasonable burden on attorneys under Rule 11 of the Federal Rules of Civil Procedure, in requiring that they perform a reasonable inquiry before filing a complaint; also suggesting that selective publication creates uncertain precedent and complicated legal research);
89. Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 OHIO ST. L.J. 177, 193-94 (1999) (arguing that "[i]f we do not discourage citations to unpublished opinions, then we are creating a type of second-class precedent," a slight variation on Judge Arnold's argument);
90. Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. MICH. J.L. REFORM 119, 149 (1994) (arguing that courts should adopt the following rules: (1) internal review of a decision not to publish; (2) a party (or a non-party) should be able to petition the court to publish an unpublished statement of reasons; (3) unpublished opinions should not be in the form of an opinion, but rather a letter from the clerk to the parties; and (4) each court should rigorously enforce its no-citation rules);
91. Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 MICH. L. REV. 940, 962 (1989) (suggesting that unpublished opinions inhibit attorneys' and scholars' ability to "discern trends in [government] agency decision-making . . . . [I] n essence the practice of selective publication obstructs effective oversight of government litigation and decision-making by both interested and disinterested observers" and that a "system of universal publication with limited citation would eliminate this obstruction");
92. Kirt Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 CAL. L. REV. 541, 574 (1997) ("A rule of limited publication that allows for both electric dissemination of, and citation to, all unpublished opinions for their persuasive value strikes the best balance.").
93. Anastasoff v. United States, 223 F.3d 898, 904 (8th Cir.), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000).
94. Id.
95. Id.
96. See, e.g., Bush v. Gore, 531 U.S. 98, 108 (2000) ("The press for time does not diminish the constitutional concern" associated with diluting the voting power of a particular segment of the population.).
97. See discussion infra Part III.A.
98. See Stempel, supra note 16, at 24 (identifying this potential result of the Anastasoff opinion, and noting that such an incentive might "result in less substantive review on appeal rather than more - the opposite of what Anastasoff appears to intend").
99. See supra Part I.B (discussing Judge Arnold's reasoning).
100. Anastasoff, 223 F.3d at 900.
101. Id.
102. But see discussion infra Part III.B.1 (suggesting that there is a debate as to whether our modern conception of the role of precedent had taken firm root at the time of the founding).
103. See the discussion infra Part III.A-B in which we discuss Blackstone's declarator)' theory as it was accepted in early Britain and the pre-1787 colonies. The historical evidence clearly shows that Blackstone and his contemporaries accepted some concept of precedent, just as it also suggests that Hamilton, Kent, Madison, and their colonial contemporaries also accepted such a concept. Our argument is not that they did not accept the concept of precedent, but rather that they did not understand precedent to require what Judge Arnold would suggest they did.
104. This position is clear from the fact that the panel felt it could not even get to the substantive legal issues involved in the case because of the binding effect of Christie. The court could have come to the same conclusion (affirming the district court decision) without relying on this constitutional argument by simply basing its decision on the persuasive nature of the Christie case rather than the binding nature of the unpublished opinion. Rather than reach its conclusion in this manner, the panel instead held that "Ms. Anastasoffs [substantive legal claim] was directly addressed and rejected in Christie" and that Rule 28A(i) did not free them from their "obligation to follow that decision." Anastasoff, 223 F.3d at 905.
105. Id. at 904-05.
106. Id.
107. See infra notes 135-44 and accompanying text. In these notes we discuss the view of the Framers, and their English contemporaries, that judicial decisions were merely evidence of the law and as such could be disregarded; whereas, current circuit rules require that published opinions be treated as binding precedent and only disregarded following an en banc overruling. Such modern treatment appears to grant more binding authority to published opinions than Blackstone and others would have granted; whereas, current treatment of unpublished opinions is very consistent with the view that judicial decisions are evidence of the law.
108. See infra Part III.B.2.
109. See infra Part III.B.2.
110. See supra Part I.B.
111. Anastasoff, 223 F.3d at 901 (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *25).
112. Id. (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *69).
113. See id. Judge Arnold relies not only on Blackstone, but also Sir Edward Coke and Sir Matthew Hale for this proposition, relying mostly on their insistence upon the importance of precedent and the judicial decision as evidence of the law. See id. (citing 4 EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 138 (London, E&R Brooke 1797) (1642) ("[A] judicial decision is to the same extent a declaration of the law.");
114. MATTHEW HALE, THE HISTORY OF THE COMMON LAW OF ENGLAND 44-45 (Charles M. Gray ed., Univ. of Chicago Press 1971) (1713) ("Judicial decisions [have their] Authority in Expounding, Declaring and Publishing the Law of this Kingdom . . . .")). In regard to the Framers' conception of the judicial power, Judge Arnold relies on some of the writings of Hamilton and Madison.
115. Id. at 902 n.10 (citing Letter from James Madison to Charles Jared Ingersoll (June 25, 1831), reprinted in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 390, 390-93 (Marvin Meyers ed., rev. ed. 1981) (describing the "authoritative force" of "judicial precedents" as stemming from the "obligation arising from judicial expositions of the law on succeeding judges")).
116. Id. at 902 (quoting THE FEDERALIST NO. 78, at 510 (Alexander Hamilton) (Modern Library ed. 1938)).
117. Id.
118. Id.
119. See infra notes 119-31 (discussing Judge Arnold's analysis of Hamilton's writings, and specifically identifying the context in which the comments quoted by Judge Arnold were made). It also appears that Judge Arnold has fundamentally misconstrued early conceptions of the doctrine of precedent under the declaratory theory. While Blackstone, and other founding-era adherents to the declaratory theory, accepted the importance of a respect for precedent, their understanding of the concept of precedent did not exclude the possibility that those precedents were simply persuasive. Indeed, Blackstone's own description of the role of judicial decisions refers to them as evidence of what the law is, and not as the law themselves. See Anastasoff, 223 F.3d at 901 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *69).
120. See infra notes 135-37 and accompanying text (arguing that Blackstone's view of precedent was actually more consistent with the current treatment of unpublished opinions than it was with the absolute binding treatment granted published opinions).
121. Anastasoff, 223 F.3d. at 900.
122. Lee, supra note 40, at 659.
123. MATTHEW HALE, THE HISTORY OF THE COMMON LAW OF ENGLAND 45 (Charles M. Gray ed., Univ. of Chicago Press 1971) (1713);
124. see also SIR CARLETON KEMP ALLEN, LAW IN THE MAKING 209-19 (7th ed. 1964);
125. 12 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 146-62 (1938).
126. HAROLD POTTER, POTTER'S HISTORICAL INTRODUCTION TO ENGLISH LAW AND ITS INSTITUTIONS 279 (A.K.R. Kiralfy ed., 4th ed. 1958). In this period the judges did not regard themselves as absolutely bound by earlier decisions, and this attitude of mind lasted well into the fifteenth century, and in a modified form down to the nineteenth century. . . . . . . . During the latter half of the seventeenth and during the eighteenth centuries we find cases constantly followed in practice but a tendency to assert that they were not binding in theory. Id. at 275, 279.
127. See, e.g.. Great N. Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 365 (1932) (rejecting due process challenge to Montana court's refusal to give retroactive effect to its decision overruling a past decision). Justice Holmes denigrated the declaratory theory of law in his famously colorful terms - as a "brooding omnipresence in the sky." S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
128. Great N. Ry., 287 U.S. at 365. Blackstone himself wrote that when "the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined." 1 WILLIAM BLACKSTONE, COMMENTARIES *70.
129. See HALE, supra note 94, at 45; see also 1 MATTHEW HALE, THE HISTORY OF THE COMMON LAW *141. [T]he decisions of courts of justice . . . have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is; especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times. And though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, as such, whatsoever. Id.
130. E.g., 2 EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND; OR A COMMENTARY UPON LITTLETON *254(a) (noting that reported decisions are "the best proofes [sic] [of] what the law is") (emphasis added).
131. Anastasoff v. United States, 223 F.3d 898, 900 n.6 (8th Cir.), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000).
132. 2 COKE, supra note 99, at *254(a).
133. Anastasoff, 223 F.3d at 902 (quoting 1 COKE, INSTITUTES OF THE LAWS OF ENGLAND 51 (1642)).
134. Anastasoff, 223 F.3d at 901.
135. Lee, supra note 40, at 661 (citing MAX RADIN, STABILITY IN LAW 18 (1944)).
136. Anastasoff, 223 F.3d at 900 (quoting 1 BLACKSTONE, supra note 97, at *69).
137. 1 BLACKSTONE, supra note 97, at *69-*70.
138. Id. at *71.
139. Id. at *70.
140. See supra notes 98-99 and accompanying text (discussing the views of Coke and Hale on the role of reported cases as evidence of the law).
141. See 1 BLACKSTONE, supra note 97, at *70.
142. See Anastasoff v. United States, 223 F.3d 898, 902 n.12 (8th Cir.), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000).
143. JAMES KENT, COMMENTARIES ON AMERICAN LAW *475.
144. Id. at *477.
145. Frederick G. Kempin, Jr., Precedent and Stare Decisis: The Critical Years, 1800 to 1850, 3 AM. J. LEGAL HIST. 28, 33 (1959).
146. Id. at 36.
147. Henry v. Bank of Salina, 5 Hill 523, 535 (N.Y. 1843).
148. Kerlin's Lessee v. Bull, 1 Dall. 175, 178 (Pa. 1786).
149. See Anastasoff, 223 F.3d at 902 (quoting THE FEDERALIST NO. 78 (Alexander Hamilton)). Like Blackstone, [Hamilton] thought that "[t]he courts must declare the sense of the law," and that this fact means courts must exercise "judgment" about what the law is rather than "will" about what it should be . . . . Like Blackstone, he recognized that this limit on judicial decision-making is a crucial sign of the separation of the legislative and judicial power . . . . Hamilton concludes that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . . ." The Framers thought that, under the Constitution, judicial decisions would become binding precedents in subsequent cases. Id. Although Judge Arnold correctly quotes Hamilton, it is important to note that the purpose of The Federalist No. 78 was to discuss the manner of appointment and the life tenure of federal judges. See Paulsen, supra note 40, at 1573-74. Hamilton is not in this passage explicating the meaning of "[t] he judicial Power" of Article III. He is defending the idea of life tenure by pointing to the practice that might be expected of federal judges interpreting the Constitution and laws of the nation. There is a difference between the content of a legal rule (here, the meaning of "[t]he judicial Power") and expectations concerning practice under that rule. Id.
150. Lee, supra note 40, at 663 (quoting THE FEDERALIST NO. 78 (Alexander Hamilton)).
151. Id.
152. See id. at 663-64 (citing THE FEDERALIST NO. 78 (Alexander Hamilton) (making this same point)).
153. See id. at 664.
154. Paulsen, supra note 40, at 1573.
155. Id.
156. Id. at 1574.
157. Id.
158. Id. at 1575.
159. Id.
160. See id. at 1576. One of the primary claims of the Anti-Federalists was that the Constitution vested in the judicial branch an unlimited supremacy over the other governmental branches, and particularly the legislative branch. Brutus wrote that "[t]his power in the judicial, will enable them to mould the government, into almost any shape they please." Id. at 1575 nn.111-13 (citing BRUTUS NO. XI (Jan. 31, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 417, 417-22 (Herbert J. Storing ed., 1981)). Despite his concern that the Constitution granted federal judges too much power to subvert the legislature in creating law, Brutus did not base this concern on a belief that the Constitution allowed judges to forever bind future judges by rendering a decision (essentially creating law judicially), but rather he was concerned that the courts would not be bound by any rules but would have complete discretion. See id. at 1575 n.113 ("[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution."). As Paulsen explains, Brutus was concerned more with the possibility "that courts would build upon precedents in expanding their powers" than the possibility that judges' discretion or power would be limited by prior judicial decisions. Id. at 1576 n.113 (citing BRUTUS NO. XII (Feb. 7, 1788), reprinted in 2 COMPLETE ANTI-FEDERALIST, supra, at 423; BRUTUS NO. XV (Mar. 20, 1788), reprinted in 2 COMPLETE ANTI-FEDERALIST, supra, at 441). Paulsen also points out that [t]he closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in this constitution, that can correct their errors, or controul [sic] their adjudications. From this court there is no appeal." . . . Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules." Id. at 1576 n.113.
161. See Id. at 1575 nn.111 & 113 (suggesting that Brutus's concerns about the supremacy of the judiciary stemmed from his belief that the Constitution, in its allocation of the judicial power, gave judges the ability to use precedent to build upon one another, thus "enabling further departures from a strict reading of the central government's powers").
162. See Lee, supra note 40, at 664 (suggesting that it is unclear "that Hamilton was discussing the question of whether the Supreme Court would have the power to overrule its own decisions; Federalist No. 78 may simply have been addressing a rule of vertical stare decisis requiring lower federal courts to follow case law from a superior tribunal").
163. 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 377-378 (5th ed. 1994).
164. See Anastasoff v. United States, 223 F.3d 898, 903-04 (8th Cir.), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000) (quoting 1 STORY, supra note 132, §§ 377-378).
165. See Lee, supra note 40, at 664 n.84 (discussing Justice Story's view of judicial decisions as binding precedent in the context of vertical stare decisis).
166. See rules cited supra note 51.
167. See 1 BLACKSTONE, supra note 97, at *70. Blackstone explains that when judges set aside prior decisions, they do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law; but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. Id.; see also 2 COKE, supra note 99, at *254(a) (noting that reported decisions are "the best proofes [sic] [of] what the law is") (emphasis added); 1 HALE, supra note 98, at *141. [T]he decisions of courts of justice . . . have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is; especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times. And though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, as such, whatsoever. Id.
168. A few of the circuit rules do purport to forbid the citation of unpublished decisions for any purpose other than establishing res judicata, collateral estoppel, or law of the case. SeeD.C. CIR. R. 28 (b) (prohibiting the citation of unpublished opinions, orders, or other dispositions except to establish the binding or preclusive effect of the disposition); 1ST CIR. R. 36(b)(2) (prohibiting citation to unpublished opinions in all "unrelated cases," presumably meaning only to assert res judicata, collateral estoppel, or the law of the case); 2D CIR. R. 0.23 (allowing judges to make oral opinions from the bench, providing for the transcription of such opinions, and yet prohibiting the citation of such opinions in "unrelated" cases); 3D CIR. R. IOP 6.2 (a "judgment order" [the functional equivalent of an unpublished opinion] has precedential or institutional value); 5TH CIR. R. 47.5 (stating that unpublished opinions issued prior to January 1, 1996 [the effective date of the amended rule] are precedent, but noting that since "every opinion believed to have been precedential is published, such an unpublished opinion should normally be cited only when the doctrine of res judicata, collateral estoppel or law of the case is applicable;" unpublished opinions issued on or after January 1, 1996 are not precedent, except for the res judicata, etc., but may be cited as persuasive authority); 7TH CIR. R. 53(b)(2)(iv) & 53(e) (stating that a court may dispose of an appeal by an unpublished order or a published opinion; unpublished orders may only be cited for purposes of establishing res judicata, promissory estoppel or law of the case, whereas published opinion may be cited without limitation as precedent; also prohibiting citation of unpublished opinions or orders from any court if that court prohibits its citation); 9TH CIR. R. 36-3 (stating that any disposition that is not an opinion or order designated for publication is not precedent and should not be cited except to show res judicata, etc.); FED. CIR. R. 47.6 (prohibiting citation to opinions "designated as not to be cited as precedent" unless it is to assert claim preclusion, issue preclusion, judicial estoppel, or law of the case). Rules of this nature arguably are vulnerable to a constitutional challenge that could ' not be leveled at rules like the Eighth Circuit rule deemed unconstitutional in Anaslasoff. The strict version of the circuit rules does seem to accord a verboten status to unpublished opinions that is not closely analogous to the treatment of judicial authority in the founding era. Such rules do call to mind, however, the treatment of English common law in some of the colonies after the revolution. In 1799, for example, New Jersey passed a law generally providing that no adjudication, decision, or opinion, made, had, or given, in any court of law or equity in Great Britain [after July 4, 1776] . . . shall be received or read in any court of law or equity in this" state, as law or evidence of the law, or elucidation or explanation thereof. ELIZABETH G. BROWN, BRITISH STATUTES IN AMERICAN LAW 1776-1836, at 82 (1964);
169. see also LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 111-12 (2d ed. 1985) (discussing the same New Jersey statute). An 1807 Kentucky statute was to the same effect - holding that "reports and books containing adjudged cases in . . . Great Britain . . . since the 4th day of July 1776, shall not be read or considered as authority in . . . the courts of this commonwealth." BROWN, supra, at 132 n.52; see also FRIEDMAN supra, at 112 (discussing the same Kentucky statute). Lawrence Friedman describes one experience under the Kentucky statute: During Spring Term, 1808, Henry Clay, appearing before the court of appeals of Kentucky, "offered to read" a "part of Lord Ellenborough's opinion" in Volume 3 of East's reports; the "chief justice stopped him." Clay's co-counsel argued that the legislature "had no more power to pass" such a law than to "prohibit a judge the use of his spectacles." The court decided, however, that "the book must not be used at all in court." Id. at 112.
170. In the Anastasoff opinion itself, the panel admits, "[b]efore the ratification of the Constitution, there was almost no private reporting and no official reporting at all in the American States." Anastasoff, 223 F.3d at 903. The panel suggests that limited publication was the rule at the time of the founding, and that the Framers did not intend the publication of all judicial decisions. Id. The panel also suggests that in the absence of wide availability of judicial decisions, judges would even rely on their own memory of decided cases. Id. It is certainly correct that judges at the time of the founding were accustomed to ruling without the benefit of reported cases, and that their only resources were a few reported cases (many from England) and their oivn memory. It may be presumptuous however to go one step further, as the panel has done, to assume that this reliance was a result of a need for definitive statements of the law. It may be more consistent with Blackstone's view of precedent to assume that this reliance upon prior decisions was a search for evidence of what the law was, rather than a search for definitive statements of the law itself. Interestingly, some legal historians argue that even those cases that were published at the time of the founding were not treated as binding precedent. Theodore Plucknett, legal historian and author of A Concise History of the Common Law, argued that even the Year Books, the primary source of published English cases at the time of the founding, "were not regarded as collections of authoritative or binding decisions." THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 346 (5th ed. 1956). Plucknett then cites several respected English justices that question whether the actual Year Book cases themselves were binding authority. See id. at 346-47. Plucknett explains that [i] n the Year Book period cases are used only as evidence of the existence of a custom of the court. It is the custom which governs the decision, not the case or cases cited as proof of the custom. . . . A single case was not a binding authority, but a well-established custom (proved by a more or less casual citing of cases) was undoubtedly regarded as strongly persuasive. Id. at 347. This does not mean that the Year Books and other reporters were not highly esteemed. Blackstone himself refers to the Year Books in his Commentaries, expressing his opinion that it was a "wise institution," that he wished Henry the Eighth had not discontinued. 1 BLACKSTONE, supra note 97, at *72.
171. FRIEDMAN, supra note 137, at 112; see also Kempin, supra note 114, at 34-35 nn.21 & 23-24 and accompanying text (stating that the early reports bore little resemblance to modern reports). "During the very late eighteenth century and the early nineteenth century, reliable unofficial reports began to emerge. For instance, Dallas's reports of United States and Pennsylvania cases were submitted to the public in 1790 as a collection of lawyers' notes." Id. at 34-35 n.21. In addition, "[t]he earliest of the official reporters appointed by some organ of the state came into existence in the early part of the nineteenth century. The movement toward official state reporters gained momentum in the 1840s and 1850s. . . ." G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 1815-1835, at 203 (abr. ed. 1991) (noting that "[a]dvocacy before the Marshall Court was an essentially oral medium," that "[w] ritten briefs were rare," and that "written treatises were neither numerous nor widely available").
172. As Judge Arnold points out, "judges and lawyers of the day recognized the authority of unpublished decisions even when they were established only by memory or by a lawyer's unpublished memorandum." Anastasoff, 223 F.3d at 903 (citing PETER KARSTEN, HEART VERSUS HEAD: JUDGE MADE LAW IN NINETEENTH-CENTURY AMERICA 30 (1997);
173. JESSE ROOT, THE ORIGIN OF GOVERNMENT AND LAWS IN CONNECTTICUT (1798),
174. reprinted in THE LEGAL MIND IN AMERICA 38-39 (Perry Miller ed., 1962)).
175. On the other hand, perhaps Judge Arnold's position in Anastasoff could be read to suggest a different, much narrower ground on which the Eighth Circuit rule at issue arguably does depart from the notion of precedent prevailing at the time of the founding: under Rule 28A(i), a circuit panel is entitled "to depart from the law set out in [unpublished] prior decisions without any reason to differentiate the cases." Id. at 905. If the founding-era notion of precedent required an overruling court to articulate a reason for setting aside an earlier decision, then perhaps the modern treatment of unpublished opinions is constitutionally vulnerable on that narrow ground. If this is the constitutional defect in the current circuit rules, however, it may easily be cured by a simple amendment to the rules, without unleashing the pragmatic cataclysm noted above. Moreover, this narrow objection fails to account for the second historical argument set out in detail below: that unpublished opinions are closely analogous to a set of judicial decisions that long have been treated as non-precedential. There is little doubt that judges have long exercised authority to hand down certain summary and other dispositions without explaining their reasons and without establishing any precedent. If a judge is within the "judicial power" in exercising the authority to decide a claim or objection without offering any explanation, there is little reason to think that a similar power cannot be exercised by handing
176. See supra notes 98-99, 136 and accompanying text.
177. While the treatment of unpublished opinions may vary between the circuits, all of the circuits have rules stating, either directly or indirectly, that published opinions are binding precedent. See supra note 13 (discussing the publication rules in all thirteen circuits).
178. This is not to suggest that granting binding effect to published opinions is either inconsistent with the Constitution or even the modern view of precedent. Article III's grant of judicial power would certainly not be violated by limiting the discretion of judges beyond the extent originally intended by the Framers. Furthermore, the declaratory theory as a viable modern understanding of precedent was abandoned years ago. See, e.g., Wesley-Smith, supra note 49, at 74 (discussing the effect of positivist theorists such as Austin and Bentham, who argued that the law was not some amorphic body of legal rules to be discovered, but one to be created as a "product of judicial will"). Judge Arnold did not base his reasoning on a modern view of precedent, but on the historic view, which is embodied in the declaratory theory despite its lack of modern acceptance.
179. See infra Part III.B.1.
180. See infra Part III.B.2.
181. See Lee, supra note 40, at 653-55.
182. Id. at 651.
183. See id. (explaining that "[f]or the most part . . . the modern muddle over stare decisis has been with us since the founding era," but that some strands of the doctrine have undergone certain changes). For a sophisticated discussion of stare decisis that bucks the conventional view that the doctrine of precedent was in a state of flux at the time of the founding, see Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 8, 10 (2001) (concluding that "for much of our nation's history, the dominant view of stare decisis was . . . remarkably consistent" with the author's proposed framework of adopting "a rebuttable presumption against overruling decisions that are not demonstrably erroneous while simultaneously recognizing a rebuttable presumption in favor of overruling decisions that are demonstrably erroneous").
184. Nelson, supra note 149, at 661 (citation omitted) (explaining that "the eighteenth and early nineteenth centuries marked an important point of transition" in the doctrine); see also infra note 155 (citing further sources in support of the proposition that the doctrine of precedent was in a stage of transition into the nineteenth century).
185. See supra notes 98-99 and accompanying text.
186. Lee, supra note 40, at 661.
187. See id. at 661-62.
188. Id. at 661 (quoting MAX RADIN, STABILITY IN LAW 18 (1944)).
189. ALLEN, supra note 94, at 209; see also 12 HOLDSWORTH, supra note 94, at 151-57 .(noting that the modern doctrine of precedent was accepted by the latter part of the eighteenth century, subject to "reservations," such as the "power to disregard cases which are plainly absurd or contrary to principle"); PLUCKNETT, supra note 138, at 350 ("[I]t is to the nineteenth century that we must look for the final stages . . . of the present system."); POTTER, supra note 95, at 279 (noting that during the eighteenth century "[o] pinions differ as to the force of individual precedents"). See generally Jim Evans, Change in the Doctrine of Precedent During the Nineteenth Century, in PRECEDENT IN LAW, supra note 49, at 35 (noting changes in the British House of Lords' treatment of its own precedent during the nineteenth century).
190. See generally Lee, supra note 40 (discussing the history of subtle changes of the doctrine in the United States).
191. Id. at 651.
192. Id.
193. 1 BLACKSTONE, supra note 97, at *69 ("[T]hese judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law.").
194. See, e.g., Colby v.j.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987); Starbuck %'. City of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977); 18 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 134.02[1][d] (3d ed. 1999).
195. Colby, 811 F.2d at 1124 (emphasis in original).
196. See Taylor v. Royal Saxon, 23 F. Cas. 797, 801 (E.D. Pa. 1849) (No. 13,803); see also N. Pac. R. Co. v. Sanders, 47 F. 604, 613 (D. Mont. 1891) (identifying this as the rule that "prevails in the circuit courts of the United States"); Blake v. Robertson, 3 F. Cas. 602, 603 (E.D.N.Y. 1874) (No. 1501) (noting that the decisions of other circuit courts "do not bind this court").
197. Blake, 3 F. Cas. at 603.
198. See id. ("The first of these questions has been heretofore determined in favor of the Blake patent by Judge Shipman, by Justice Nelson, by Judge Drummond, and by Judge Shepley, in other actions which have come before these judges.").
199. Id.
200. See id.
201. See HENRY CAMPBELL BLACK, HANDBOOK ON THE LAW OF JUDICIAL PRECEDENTS § 99 (1912).
202. U.S. CONST, art. III, § 1, cl. 1.
203. But see Martin, supra note 65, at 193-94 (arguing that non-publication rules - specifically the rules of the Sixth Circuit - are necessary to conserve judicial resources, and yet suggesting that allowing citations to unpublished opinions would create "a type of second-class precedent"). Despite his apparent distaste for a "second-class of precedent," Judge Martin does not appear to oppose the existence of multiple levels of precedent on a constitutional ground, since he states merely that such a "second class of precedent" does not help anyone unless there is no published opinion on point, in which case the unpublished opinion may be cited. See id. at 194. He therefore appears to see the problem not as one between persuasive and binding precedent, but between two levels of binding precedent.
204. Mandel v. Bradley, 432 U.S. 173, 180 (1977) (Brennan, J., concurring); see also Edelman v. Jordan, 415 U.S. 651, 670-71 (1974) (stating that cases decided by summary disposition are "obviously . . . not of the same precedential value as would be an ' opinion of this Court treating the question on the merits").
205. People ex rel. Griffings v. Mayor of Brooklyn, 9 Barb. 535, 544. (N.Y. Gen. Term 1850).
206. J.C. WELLS, A TREATISE ON THE DOCTRINES OF RES ADJUDICATA AND STARE DECIsis 534 (Des Moines, Mills & Company 1878) (emphasis in original).
207. See Mandel, 432 U.S. at 180 (Brennan, J., concurring); Edelman, 415 U.S. at 670-71.
208. Etting v. Bank of the United States, 24 U.S. (11 Wheat.) *59, *78 (1826) ("The principles of law which have been argued cannot be settled."); WELLS, supra note 172, at 533 (citing several New York state cases as examples, including: Bridge v. Johnson, 5 Wend. 342, 372 (N.Y. 1830) (such a decision merely established the law for the case, and does not adopt any particular rule); People ex rel. Attorney General v. Mayor of New York, 25 Wend. 252, 256 (N.Y. 1840) ("The effect of such a judgment of affirmance is as conclusive upon the rights of the parties to the judgment as any other; although it is not considered as settling the question of law as to cases which may arise between other parties.")).
209. WELLS, supra note 172, at 533.
210. Id.
211. Bridge v. Johnson, 5 Wend. 342, 372 (N.Y. 1830); see also Etting, 6 U.S. (11 Wheat.) at *78.
212. 1 BLACKSTONE, supra note 97, at *70.
213. See 1 BLACKSTONE, supra note 97, at *67-*70 (describing the "unwritten, or common law" as a combination of "general" and "particular" customs adopted and used by the courts); WELLS, supra note 172, at 537 ("We deny that a recent and solitary decision of any judge, however eminent, ought to be regarded by us as conclusive evidence of the existing law.").
214. Butler v. Van Wyck, 1 Hill 438, 462 (N.Y. Sup. Ct. 1841).
215. The argument, moreover, overstates the distinction. Today, the routine application of a settled rule of law may not create precedent, but that is not to say that the rule itself is not precedential. Rather, the point is that earlier decisions already have established the principle in question, and there is no particular reason to rehearse its application in a new case in a way that would elaborate further on that principle.