Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

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at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb.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Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.” She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of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.”


Law professors, and particularly law school deans, love to complain about the law school rankings done every year by U.S. News & World Report. (Unless their school rises in the rankings, in which case they are an objective measure of merit.) It’s been pretty well demonstrated that, more than a decade into the rankings project, the primary thing the U.S. News rankings measure is how well the school did on previous years’ rankings. In other words, there’s a massive feedback loop going on that is difficult for any one school to break out of. Nevertheless, schools try, because students and even professors, despite their complaints, rely on the rankings to evaluate the worth of various schools.