The Right to Cite: Why Fair and Accountable Courts Should Abandon No-Citation Rules
In many courts across the country, no-citation rules bar discussion of most of the judges’ recent routine decisions. Four federal appellate courts and more than 20 state courts forbid lawyers and lower courts from citing the appellate courts’ summary decisions, which these courts designate “nonprecedential.” Many other jurisdictions do not bar citation, but assert that such summary decisions are not binding precedent. In the federal courts of appeals such rules now cover the vast majority of routine rulings – over 80 percent of cases decided in 2003.
Perversely, these rules allow litigants to cite virtually every source except recent decisions by the judges who will decide their case. Citation bans may have been justified when they covered a small number of case reports that were genuinely unpublished. But in today’s world of searchable computer databases, no-citation rules are bad policy and may be unconstitutional. An emerging trend toward allowing open citation of all court decisions should be supported by the American bench and bar. In particular, proposed Federal Rule of Appellate Procedure 32.1 should be adopted, as should pending state court reforms.
This publication offers a critical analysis of no-citation rules currently in effect in several federal circuits and in many state courts. It also provides both constitutional and policy arguments why the U.S. Judicial Conference should adopt proposed Federal Rule of Appellate Procedure 32.1, mandating open citation.