Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit has responded to my June 19th post on this blog by e-mail with a critique. My earlier blog post said that the fact that 90% of federal court of appeals decisions are designated as "unpublished" is a growing threat to the rule of law.
Judge Smith does point out correctly that Federal Rule of Appellate Procedure 32.1 states that (for federal courts only): "[a] court may not prohibit or restrict the citation of federal judicial opinions [or] orders designated as 'unpublished' ***"." Rule 32.1, by the way, applies only to decisions issued after 2007—two years after I had stopped teaching Federal Jurisdiction. Before that judges in some jurisdictions could prohibit or restrict the citation of federal judicial opinions or orders by calling them "unpublished".
I am happy to hear that the aspiration of many inferior federal courts not to prohibit the citation of their "unpublished" precedents or orders has now been rendered unlawful as well, as its having always been unwise. Note that this rule does not say that federal courts of appeals are bound by stare decisis to follow their prior "unpublished" opinions. The fact remains, as I stated in my June 19th post, that the federal court of appeals judges are rendering 90% of their decisions in cases that do not bind them as precedent in future cases.
