Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

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Category: Federal Civil Litigation, Legal Practice, Legal Research, Wisconsin Civil Litigation
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A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em:  A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN.  Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law.  She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.

Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.”  She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of federal decisional law.”  

As Sloan discusses, there are good questions about whether such a change should (or even could) be implemented by rule change.  But setting that procedural issue aside, the changes she recommends have some appeal, to me.  Currently, Federal Rule of Appellate Procedure 32.1 prohibits the circuits from prohibiting citation of non-precedential opinions, but does not specify what weight can or should be accorded any such opinions that are issued.  As Sloan details in her article, under this regime the circuits have developed different, somewhat inconsistent approaches regarding the issuance of and importance of non-precedential opinions.  Uniformity seems preferable.  

Also, assigning the opinions the sort of intermediate weight Sloan advocates is intuitively appealing, if only because it seems a rough approximation of the way that courts will respond to such opinions.  I.e., even if non-precedential opinions are designated as merely “persuasive,” once an on-point non-precedential opinion is presented to a court, the court probably will feel the need to respond to its reasoning in some way or another, either adopting it as good reasoning, or disapproving it.

Sloan’s article also reminded me of a question that Wisconsin Court of Appeals Judge Joan Kessler raised a couple of weeks ago, when I was on a CLE panel sponsored by the Association of Women Lawyers, along with Judge Kessler and Court of Appeals Judge Kitty Brennan.    During discussion of the recent decision to amend Wisconsin Statute 809.23(3), Judge Kessler asked whether Cook v. Cook, the Wisconsin Supreme Court case that prohibits the Wisconsin Court of Appeals from overruling its own opinions, would also apply to non-precedential opinions, when they  become “persuasive” authority after the new rule takes effect in July 2009. 

Judge Kessler seemed to presume, correctly I think, that Cook v. Cook would not limit the court’s ability to overrule or modify such decisions.  The precise holding of Cook v. Cook,  “that the constitution and statutes [of Wisconsin] must be read to provide that only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals,” does not reach non-precedential opinions.  

Nonetheless, Judge Kessler’s question, like Sloan’s questions in this new article, lead me to believe that questions about the proper “value” of non-precedential opinions in legal arguments will persist, despite (and maybe because of) the trend toward allowing citation of these opinions.

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