University of Kansas Law ReviewNovember, 2001

Comment

*195UNPUBLISHEDOPINIONS, PRECEDENT, AND THE FIFTH AMENDMENT: WHY DENYING UNPUBLISHEDOPINIONS PRECEDENTIAL VALUE IS UNCONSTITUTIONAL [FNa1]

Copyright (c) 2001 Kansas Law Review, Inc.

I. Introduction

      Judicial opinions that create precedent are the exception rather than the norm.  Starting in 1973, the United States Courts of Appeals began adopting limited publication rules. [FN1] These rules not only restricted the number of opinions that were published, they also denied precedential value to those opinions that remained unpublished. Since the inception of limited publication rules, the prevalence of unpublished opinions has escalated at an alarming rate. [FN2] Almost eight out of every ten federal circuit court opinions are unpublished. [FN3] To put this in perspective, there were more than 10,000 unpublished opinions issued by the federal courts of appeals in 1993 alone. [FN4] This translates to thousands of precedents lost. The doctrine of precedent is like a pointillist painting with judicial opinions as the carefully placed points providing depth. The fewer opinions that are given precedential value, the less focused and detailed the picture becomes.

       *196 In August of 2000, the Eighth Circuit Court of Appeals, in Anastasoff v. United States, [FN5] took an affirmative step towards providing unpublished opinions with precedential value. [FN6] Though Anastasoff was vacated as moot and is no longer good law, the opinion was the first opinion to address the constitutionality of denying unpublished opinions the power of precedent. [FN7] The court argued that denying precedential value to unpublished opinions “purports to expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional.” [FN8] This Comment argues that denying precedential value to unpublished opinions is not a violation of Article III, but instead a violation of the protections guaranteed by the Fifth Amendment due process clause.

      Part II of this Comment explores the development of unpublished opinions, the argument set out in Anastasoff, and the historical roots of precedent. Part III.A demonstrates that the text and history of Article III are inadequate to show that the doctrine of precedent is inherent in the “judicial power.” Part III.B concludes that, while the Article III argument is insufficient, refusing to recognize unpublished opinions as precedent potentially violates both the procedural due process and equal protection guarantees of the Fifth Amendment.

II. Background

A. The History and Development of Unpublished Opinions

      The term “unpublished opinion” is, at times, a paradox. In fact, an unpublished opinion may, by an everyday definition, be published. The dictionary defines “publish” as preparing for public distribution, or bringing to the attention of the public. [FN9] Westlaw and LEXIS regularly make unpublished opinions available to the public. [FN10] If a newspaper was so moved, it would be free to reprint an unpublished opinion. [FN11] A legal journal or specialty reporter could distribute any unpublished opinion it desired. [FN12] By dictionary definition, each of these acts constitutes publication.*197 Yet, none of these acts would turn an “unpublished opinion” into a “published opinion.” “Unpublished opinion” is a legal term of art with very specific requirements. [FN13] For an opinion to be unpublished it must have two characteristics: (1) the court must have declared the opinion to be “unpublished”; and (2) the opinion must not be printed in an official reporter, such as the Federal Reporter. [FN14]

      The concept of limiting the publication of judicial opinions is not a modern one.  “Faced with roughly thirty volumes of reported decisions in 1777, England's Lord Coke warned judges not to report all decisions.” [FN15] As

early as 1915, it was a common concern in the United States that no one lawyer or judge would be able to stay current with the flood of reported decisions. [FN16] These worries only grew as the number of cases coming through the courts escalated. [FN17]

      The workload on the federal courts of appeals has soared without mercy. In 1950 there were 2678 case filings in the federal courts of appeals. [FN18] By 1970, that number had swelled to 11,440. [FN19] In that same twenty years, the number of sitting federal circuit court judges only increased from sixty-four to ninety. [FN20] Put another way, the number of case filings per judge skyrocketed from 42 in 1950 to 127 in 1970. [FN21] It is therefore not a surprise that the 1970s proved to be the breaking point for the uniform publication of opinions. [FN22] It was at this time that “judges, scholars, and attorneys in the United States embarked on a serious effort to reduce the growing body of reported case law.” [FN23] This reduction, it was argued, would help keep the body of law manageable for the overburdened judges. [FN24]

       *198 In 1973, the Advisory Council for Appellate Justice distributed a report formally advocating the limitation of published opinions. [FN25] The report stated that “the judicial time and effort essential for the development of an opinion to be published for posterity and widely distributed is necessarily greater than that sufficient to enable the judge to provide a statement so that the parties can understand the reasons for the decision.” [FN26] In addition, the report set out guidelines for determining which opinions should be published and which ones should not. [FN27] The Advisory Council also recommended that these unpublished opinions not be precedent, and should therefore not be cited by parties or judges. [FN28] In denying unpublished opinions precedential value, the Advisory Council hoped to prevent repetitious restatement of the law, to give judges a lighter load, and to prevent unequal access to unpublished opinions. [FN29]

      In response to the Advisory Council report, every federal court of appeals implemented rules regarding the publication and citation of unpublished opinions. [FN30] The adopted rules generally included a set of guidelines for determining when and how to make a publication decision. [FN31] Most of the circuits also denied precedent to these new unpublished*199 opinions. [FN32] It is this last portion of the unpublished opinion rules that has caused significant controversy.

B. The Current Circuit Court Rules Regarding the Precedential Value of Unpublished Opinions

      Today, all thirteen of the federal circuit courts produce unpublished opinions. [FN33] However, not all of the circuit courts agree as to the precedential value of unpublished opinions. The precedential treatment of unpublished opinions tends to fall into three categories: (1) unpublished opinions are not precedent and cannot be cited except in related cases to support a claim of res judicata, collateral estoppel, or law of the case; [FN34] (2) unpublished opinions are not precedent but may be cited as persuasive authority if the unpublished opinion addresses a material issue in a way that no published opinion does; [FN35] and (3) while citation to unpublished opinions is disfavored, if a party believes that an unpublished opinion has precedential value as to a material issue of its case that no published opinion can offer, the unpublished opinion may be cited. [FN36]

1. Circuits in Which Unpublished Opinions Are Not Precedent and Should Not Be Cited

      Six of the thirteen circuit court rules fall into this first category. The Seventh Circuit Rule, a rule typical of this category, reads: “Except to support a claim of res judicata, collateral estoppel or law of the case, [[unpublished opinions] shall not be cited or used as precedent.” [FN37]

      In addition to the Seventh Circuit, the First, Second, Ninth, D.C., and Federal Circuits have similar rules greatly restricting citation to unpublished opinions. [FN38] These rules typically prohibit citation of the circuit's*200 unpublished opinions in any court. [FN39] Circuit rules in this first category seemingly would allow citation of an unpublished opinion from another court if the rendering court allowed citation. [FN40]

2. Circuits in Which Unpublished Opinions Are Not Precedent but May Be Cited as Persuasive Authority

      The Tenth Circuit originally allowed citation to unpublished opinions, but in 1986, the court, against a strong dissent written by Judge Holloway, adopted Rule 36.3, disallowing citation. [FN41] Tenth Circuit Rule 36.3 currently states:

       (A) Unpublished orders and judgments of this court are not binding precedents, except underthe doctrines of law of the case, res judicata, and collateral estoppel.  (B) Citation of an unpublished decision is disfavored. But an unpublished opinion may be cited if: (1) it has persuasive value with respect to a material issue that has not been addressed in a published opinion; and (2) it would assist the court in its disposition. [FN42]

      Five circuit court rules fall within this second category. The Eighth, Tenth, and Eleventh Circuit rules are almost identical. [FN43] The Third Circuit Rule is slightly different, but the effect is much the same. Third Circuit I.O.P. 5.3 states that the court does not consider unpublished opinions to be precedent, [FN44] and Third Circuit I.O.P. 5.8 makes it clear that the court itself tends not to cite unpublished opinions. [FN45] Third Circuit Rule 28.3(a), however, does provide the form to use when citing an unreported case in a brief. [FN46]

      The Fifth Circuit rule applies this second approach to all unpublished opinions issued on or after January 1, 1996. [FN47] However, all unpublished*201 opinions issued before January 1, 1996 are given precedential value and fall into the third category. [FN48]

3. Circuits in Which Unpublished Opinions Have Precedential Value

      As mentioned above, in the Fifth Circuit, all pre-1996 cases stand as precedent. [FN49] In addition, the Fourth and Sixth Circuits also give precedential value to unpublished opinions. [FN50] Sixth Circuit Rule 28(g) provides:

       If a party believes . . . that an unpublished disposition has precedential value in relation to a material issue in a case, and that there is no published opinion that would serve as well, such decision may be cited if that party serves a copy thereof on all other parties in the case and on the Court. [FN51]

      The Sixth Circuit originally had adopted a rule that did not allow unpublished opinions to stand as precedent; however, it shifted its position and eliminated its no-citation policy in favor of a rule that follows almost word for word the rule in the Fourth Circuit. [FN52]

C. Anastasoff v. United States [FN53]

      The United States Supreme Court has never addressed the constitutionality of limited publication rules that deny precedent to unpublished opinions. In 1976, there were two attempts to bring this question before the Court. [FN54]In Browder v. Director, Department of Corrections of Illinois, [FN55] the Court granted certiorari to hear this very issue. [FN56] But in its disposal of the case, the Court never addressed the issue of unpublished opinions. [FN57] In Do-Right Auto Sales v. United States Court of Appeals for the Seventh Circuit, [FN58] the Seventh Circuit, pursuant to its no-citation rule, *202 struck the citation made by the petitioner of an unpublished opinion. [FN59] The petitioner sought leave to file petitions for writ of mandamus, but the Supreme Court denied leave. [FN60] No federal court had ruled on the constitutionality of unpublished opinions until the Eighth Circuit tackled the issue in Anastasoff.

      In that case, Faye Anastasoff sought a federal income tax refund for taxes overpaid on April 15, 1993. [FN61] Her refund claim was mailed on April 13, 1996 and was received and filed by the Internal Revenue Service (IRS) on April 16, 1996. [FN62] Under 26 U.S.C. § 6511(b)(1), refunds may only be granted for taxes paid within three years prior to the filing of the claim. [FN63] Ms. Anastasoff's refund claim was filed exactly three years and one day after the overpaid taxes in question were paid. [FN64] Because her claim was filed one day late, the IRS denied her refund. [FN65]

      Ms. Anastasoff argued that the “Mailbox Rule” should apply to her refund claim. [FN66] The “Mailbox Rule,” found in 26 U.S.C. § 7502, saves untimely claims if the postmark date falls on or before the acceptable time requirement, despite the fact that the claim was actually received after the due date. [FN67]

      In Christie v. United States, [FN68] the Eighth Circuit was presented with the same legal argument that Ms. Anastasoff brought before the court. [FN69] Christie, like Anastasoff, involved a tax refund claim sent prior to the three year deadline but received after the deadline had passed. [FN70] The taxpayers in Christie similarly argued that the “Mailbox Rule” should save the refund. [FN71] The Eighth Circuit in Christie rejected that argument. [FN72] Ms. Anastasoff did not distinguish her case from Christie. [FN73] Instead, Ms. Anastasoff argued that Christie was an unpublished opinion,*203 and under 8th Circuit Rule 28A(i), such an unpublished opinion could not be used as precedent. [FN74] The relevant part of Rule 28A(i) states that “[u]npublished 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.” [FN75] The court rejected Ms. Anastasoff's argument and held that “the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond the ‘judicial.”’ [FN76]

      The Eighth Circuit reasoned that denying precedential value to unpublished opinions would allow the court to circumvent its past decisions. [FN77] A ruling would have no precedential effect simply because it was labeled “unpublished.” [FN78] The court stated that the doctrine of precedent was an inherent component of the “judicial power” granted to the courts by Article III of the Constitution. [FN79] The court's analysis focused on the fact that precedent was the method of decisionmaking known and embraced by the Framers of the Constitution. [FN80] Citing authorities such as Sir Edward Coke, Blackstone, and Alexander Hamilton, the court concluded that “as the Framers intended, the doctrine of precedent limits the ‘judicial power’ delegated to the courts in Article III.” [FN81]

      Having deemed Rule 28A(i) unconstitutional, the court held that it was bound to follow its prior decision in Christie. [FN82] Accordingly, the court denied Ms. Anastasoff's refund and affirmed the judgment of the district court.

      At about the same time Christie was decided, the Second Circuit decided Weisbart v. United States v. Department of Treasury. [FN83] Weisbart was in direct conflict with Christie, but the Eighth Circuit followed Christie, believing itself to be bound. [FN84] The IRS acquiesced and followed*204 the rule of Weisbart. [FN85] As a result, Ms. Anastasoff was refunded the full amount of her claim. The Eighth Circuit, on a rehearing en banc, decided that the case was now moot, and vacated the judgment. [FN86] “[W]hether unpublished opinions have precedential effect no longer has any relevance for the decision of this tax-refund case.” [FN87] As a result, the constitutionality of Rule 28A(i) is again an open question. [FN88]

      Anastasoff has not gone quietly. [FN89] Some judges have criticized the opinion. [FN90] Other judges have questioned the validity of their own rules regarding unpublished opinions. [FN91] Lawyers have since cited unpublished opinions in violation of circuit court rules while relying on the analysis in Anastasoff. [FN92] Clearly, a need exists to determine uniformly whether or not such rules are constitutional. To address the constitutional implications of these circuit court rules, a closer examination of the doctrine of precedent is critical.

*205 D. The Doctrine of Precedent: Its Meaning and Its Roots

1. What is Precedent?

      A belief in and an understanding of precedent is woven into the tapestry of human nature. A child who disobeys her parent and is reprimanded innately expects a sibling to be punished when he too disregards the same rule. The basic legal conception of precedent is much the same.

      “A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject . . . .” [FN93] James Kent's concise statement makes clear just what legal precedent is. At its core, following legal precedent means nothing more than treating similar cases similarly. The doctrine of precedent provides the law with a degree of uniformity. “Stare decisis provides some moorings so that men may trade and arrange their affairs with confidence.” [FN94] Precedent in the law is the human response to a desire for societal stability.

2.Where Did Our Notion of Precedent Come From?

      In England, starting in approximately 1290, law students would attend judicial sessions and make reports of the happenings. [FN95] These reports, known as Year Books, were often used in oral arguments and as evidence of judicial custom. [FN96] These reported customs, however, were not considered binding, but merely persuasive. [FN97] When the use of Year Books ended around 1535, private reports of judicial decisions, usually named after a well respected judge or lawyer, became popular. [FN98] Slowly, courts began to adhere to their customs, but this adherence was not strict and usually dealt only with procedural matters. [FN99] It was not until *206 the beginning of the seventeenth century that argument by precedent began to take center stage. [FN100]

      Sir Edward Coke might be considered the catalyst behind the movement to demand the use of precedent in the law. [FN101] It was Coke “more than any other person, and perhaps more than all others put together, who established the authority of rules on the basis that they had been previously enunciated by courts of common law.” [FN102] Coke used precedent as a tool. “[I]t was his main weapon in the fight for the independence of the judiciary and limits on the king's prerogative rights.” [FN103] While Coke's movement was critical, his case reports were not yet considered authoritative sources of law. [FN104]

      Modern precedent, where prior judicial decisions carry authoritative weight, began to take form in the latter part of the seventeenth century. [FN105] For example, Matthew Hale believed that judicial decisions were more than mere examples of the law. [FN106] He believed them to be proof of the law. [FN107] During the seventeenth century, historical continuity “became a central element of the common-law tradition.” [FN108] Prior judicial customs began to apply to both substantive and procedural aspects of contemporary cases. [FN109] In addition, courts began to refine precedent, bringing it into the form we know today, by distinguishing between holding and dictum. [FN110] These English customs were then adopted by the American courts. [FN111]

*207 3. An Example of Precedent at Work: Payne v. Tennessee [FN112]

      While the doctrine of precedent promotes stability, it does not likewise promote complete inflexibility. As an engineer would attest, a bridge or building lacking any flexibility at all would in fact be unstable. The application of the doctrine of precedent is much the same. While those similarly situated should be treated similarly, a change in situation should result in a new application of law, not a rigid adherence to a decision relying on circumstances that no longer prevail. The Court in Payne demonstrates this flexibility.

      In his opinion, Chief Justice Rehnquist makes it clear that stare decisis was of great importance to the Court. “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” [FN113] In the context of this clear reverence for precedent, the Court overruled two previous Supreme Court decisions. [FN114] Chief Justice Rehnquist explains that when a decision is no longer workable, stare decisis is “not a mechanical formula of adherence.” [FN115] Payne shows that while following previous decisions is important, the doctrine of precedent only requires rigid adherence when societal and legal situations are sufficiently similar.

      With the history and application of precedent as a background, it is possible to address the critical issue: the constitutional status of precedent, and therefore, the constitutionality of denying unpublished opinions precedential value.

III. Analysis

A. Precedent and Article III: Why the Judicial Power is Not the Source of a Constitutional Mandate for the Doctrine of Precedent

      While it may be accepted that precedent was a critical cog of the English common law system adopted and mimicked in the United States, it is much more controversial to assume that the use of precedent *208 by the courts is an Article III mandate. The vesting clause in Article III of the Constitution reads: “The judicial Power of the

United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” [FN116] This vesting clause has been the source of much debate. To some, the doctrine of precedent is inseparable from the “judicial Power” granted by Article III. [FN117] To others, the doctrine of precedent is merely a matter of practice and far from a constitutional requirement. [FN118] In fact, it has even been argued that the use of precedent is itself unconstitutional. [FN119] The court in Anastasoff determined that precedent was a constitutional requirement inherent in the grant of “judicial Power.” [FN120] It is clear, however, that the court in Anastasoff stretched the constitutional concept of judicial power further than it was meant to go.

1. The Text of the Constitution

      When trying to determine what is and is not mandated by the Constitution, the first and most important place to look is the text itself. The discussion of judicial power in Article III is brief and to the point: “The judicial Power of the United States, shall be vested in one supreme Court [and it] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” [FN121] There is no explicit reference to stare decisis or precedent. [FN122] In other words, “[n]owhere does the text specify that ‘[t]he judicial Power’ includes the power to vest precedent with authoritative, decision-altering weight, independent of its *209 persuasiveness.” [FN123] Clearly, the text of Article III alone does not make precedent a constitutional requirement.

2. The Historical Argument is Speculative at Best

      The Article III argument is based in large part on the belief that the Framers of the Constitution believed the doctrine of precedent to be inherent in the definition of “judicial Power.” [FN124] The evidence for such a contention is speculative at best, and no doctrine should be considered a constitutional mandate based solely on speculation. It is clear that “[t]he doctrine of precedent was well-established by the time the Framers gathered in Philadelphia.” [FN125] It may also be true that the Framers looked favorably on the reports of Sir Edward Coke and other supporters of the doctrine. [FN126] These arguments, however, fall far short of proving that the use of precedent was a constitutional requirement. The Framers may even have expected the judges of their time to look to precedent for guidance, but that does not mean that they intended judges to be bound forever to all prior rulings, irrespective of practicalities.

      Alexander Hamilton was a proponent of the doctrine of precedent. [FN127] In fact, it is clear in The Federalist No. 78 that Hamilton supported a prima facie rule of adherence to past decisions. [FN128] Toward the end of The Federalist No. 78, he wrote:

       To 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; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. [FN129]

       *210 While Hamilton clearly saw the “desirability and inevitability of a system of precedent,” he does not simply “claim that the judicial power embraces the power to prescribe binding precedential effect for judicial decisions on matters of federal law irrespective of the correctness of such decisions.” [FN130] Professor Thomas Lee points out that this endorsement of precedent is not to be read in isolation, but within the surrounding context. [FN131] Hamilton made this statement while discussing the idea of life tenure for judges, not while defining the meaning of the Article III judicial power. [FN132] Rather than describing the judicial power, Hamilton was simply stating what he expected judges to do. [FN133] “Federalist No. 78 was hardly conceived as a comprehensive exposition of the doctrine of stare decisis, and Hamilton's statement of a prima facie rule of adherence to precedent should not be construed to exclude the existence of exceptions or countervailing considerations.” [FN134]

      This single passage of The Federalist is insufficient proof that Article III requires adherence to the doctrine of precedent. Translating such unclear historical arguments into conclusive evidence of constitutional meaning starts one down a slippery slope of overly speculative constitutional construction. Hamilton's statement can just as easily be construed as supporting stare decisis as nothing more than “a rule of practice.” [FN135] “Hamilton could not

possibly have meant by this discussion that precedents-especially precedents contrary to the laws being interpreted-would be literally binding on judges in the future.” [FN136] Simply put, this notion of precedent does not exist in the law and definitely did not exist in the legal world of Hamilton's day. [FN137]

      The text of Article III and the history behind it are insufficient to show that the doctrine of precedent is inherent in the “judicial Power.” This, however, does not mean that denying precedential value to unpublished opinions is constitutional. To the contrary, there is a constitutional provision demanding that unpublished decisions have precedential weight: the Fifth Amendment.

*211 B. Why The Fifth Amendment Requires That Unpublished Opinions Be Given Precedential Value

      The Fifth Amendment supplies a constitutional anchor for the doctrine of precedent that the Article III judicial power is unable to provide. Through the course of Fifth Amendment adjudication, two doctrines have emerged that offer constitutional vehicles for the abolishment of no-citation rules. First, the procedural due process doctrine mandates fairness, protecting individuals from arbitrary judicial action. [FN138] Second, the equal protection doctrine ensures that “all persons similarly situated should be treated alike.” [FN139] Denying precedential value to unpublished opinions offends both procedural due process and equal protection.

1. Procedural Due Process

      “The validity and moral authority of a conclusion largely depend on the mode by which it was reached.” [FN140]

      The Fifth Amendment text is straightforward: “No person shall be . . . deprived of life, liberty, or property, without due process of law.” [FN141] Due process of law provides both substantive and procedural protections. The substantive aspect of due process restricts the government from instituting laws or rules that, in substance, restrict certain individual freedoms, such as the guarantees of the Bill of Rights. [FN142] On the other hand, the procedural aspect of due process assures that if one is deprived of life, liberty, or property, a fair procedure is used to determine the basis for such deprivation. [FN143] Rules denying unpublished opinions precedential value do not, on their face, deny individually protected freedoms. Instead, such rules establish an unfair procedure. [FN144]

       *212 A fair procedure is a centerpiece of due process. [FN145] The core requirements of procedural due process-notice, and the opportunity to be heard [FN146]-aim to achieve fairness. [FN147] In many ways, due process is a constitutional synonym for fairness. Fairness implies a certain degree of objectivity and predictability. [FN148] Similarly, “‘due process' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess.” [FN149] Yet, when a court refuses to grant an unpublished opinion precedential value, it denies an individual the opportunity to rely on the history, thereason, or the course that a binding decision has set forth. The fairness afforded by procedural due process shields individuals from arbitrary government action. [FN150] If unpublished opinions are not precedent, however, the court can arbitrarily ignore or even directly contradict its previous decision for any reason or no reason at all. Denying litigants the opportunity to rely on the prior decisions of a court offends the notion of fairness demanded by procedural due process. [FN151]

      Williams v. Dallas Area Rapid Transit [FN152] epitomizes not only this potential for arbitrary judicial treatment, but also the unfairness that ensues. In Anderson v. DART [FN153] the federal district court held that “DART is a political subdivision of the state of Texas, and is therefore immune *213 from suit under the Eleventh Amendment.” [FN154] On appeal, the Fifth Circuit affirmed “for essentially the reasons stated by the district court in its comprehensive and well-reasoned opinion.” [FN155] The Fifth Circuit decision in Anderson was unpublished, and pursuant to Fifth Circuit Rule 47.5.4, it carried no precedential value. [FN156] In 2000, the question of Eleventh Amendment immunity was again presented to the district court in Williams. The district court, relying on Anderson, held that “[i]t is firmly established that DART is a governmental unit or instrumentality of the state of Texas.” [FN157] In February of 2001 the Fifth Circuit, in direct conflict with Anderson, reversed the district court, holding that it had been established since 1986 that DART possessed no such immunity. [FN158] In two cases, the same defendant was treated differently by the same circuit court simply because the first decision was unpublished.

[FN159] “[O]ne must question the fundamental fairness of having two opinions from the same court, one giving DART Eleventh Amendment immunity and the other, less than two years later, taking that immunity away.” [FN160] DART is arbitrarily treated differently by the same federal circuit court without explanation. Procedural due process functions to minimize erroneous decisions. [FN161] Yet, in this case, it is impossible that both decisions are correct or fair.

      Proponents of denying precedent to unpublished opinions argue that unjustified or arbitrary judgments will not occur because unpublished opinions merely restate already settled questions of law. [FN162] In other words, there is no need to reinvent the wheel. This argument is based on two major assumptions: (1) courts are able to predict exactly what intricacies of a case are going to be important down the road; and *214 (2) unpublished opinions never actually make law. Both of these assumptions are flawed.

      Cases are like fingerprints. Many may look alike, but in reality there is always at least one distinguishing detail. By rendering an opinion unpublished and therefore without precedential value, the court assumes that the one detail that does distinguish a case from the already existing case law will not be important to another party down the road. Judge Richard S. Arnold, the author of the Anastasoff opinion, states it this way:

       One party cites a previous opinion as binding precedent. The other party says it is distinguishable, and, upon being asked why, says that the previous case was argued on a Tuesday, whereas this case is being argued on a Wednesday . . . . The example is extreme, and deliberately so, but I believe it illustrates the point. Every case has some precedential value, maybe not much, but some. [FN163]

      Details are critical to our legal system, and there is no way a judge can predict the details of future disputes. It is inconceivable that nearly eight of ten federal circuit court cases, the number concluding with an unpublished opinion, [FN164] have not one unique detail that could be important to another party before the same court in the future.

      Not only is it impossible to predict future cases, but there is also evidence that a disturbing number of unpublished opinions are, in fact, “law-making” decisions. [FN165] A recent study compiled all the federal appellate opinions arising under the National Labor Relations Act between October 1986 and November 1993. [FN166] The study revealed that, within this sample, the courts did not publish approximately fifteen percent of the opinions accompanied by a dissent and nearly six percent of the opinions carrying a concurrence. [FN167] This evidence of disagreement demonstrates that complicated and unsettled questions of law are being *215 addressed in unpublished opinions. [FN168] If a legal issue is truly established, there is no need for a dissent or concurrence.

      Even if a case does not raise new issues of law or fact, it may still be considered significant. [FN169] The frequency with which certain issues are decided, for example, is important. [FN170] “The accumulation of decisions in an area allows litigants to assess the stability of a doctrine with greater confidence . . . .” [FN171] When anywhere from seventy to ninety percent of all circuit court opinions are unpublished, [FN172] a misleading representation of the law is presented to the public. [FN173] “For example, reversals are more likely to be published than affirmances, so in a field in which the vast majority of decisions appealed are affirmed, an appellant's prospects will seem much brighter if all his lawyer has to go on is the court's published opinions.” [FN174] Unpublished opinions are more than repeated incantations of settled law; and, as a result, denying them precedential value jeopardizes the fairness dictated by procedural due process.

      The Fifth Amendment provides more than one possible weapon to use in a constitutional attack on no-citation rules. By allowing itself to ignore previous decisions, a court not only creates a potential inequity in violation of procedural due process, it also produces the possibility that like individuals will be classified and treated differently in breach of the equal protection doctrine.

2. Equal Protection

      The Supreme Court has upon many occasions interpreted equal protection; as it has done so, a fixed theme has developed: the equal protection doctrine requires that “all persons similarly situated should be treated alike.” [FN175]

      The text of the Fourteenth Amendment mirrors that of the Fifth Amendment: “No state shall . . . deprive any person of life, liberty, or *216 property, without due process of law.” [FN176] The Fourteenth Amendment, however, also provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” [FN177] This Fourteenth Amendment equal protection clause has been the source of much Fifth Amendment discussion, the culmination of which has been the adoption of a congruent Fifth Amendment equal protection doctrine. [FN178]

      The inclusion of equal protection in the Fifth Amendment due process analysis was, as many developments in constitutional interpretation have been, a gradual process. [FN179] “The doctrine of fifth amendment equal protection entered the Constitution a little at a time, in a series of decisions that gradually came to acknowledge its existence . . . . The camel, in other words, backed into the tent.” [FN180] In LaBelle Iron Works v. United States, [FN181] a taxpayer referred to Fourteenth Amendment equal protection cases while asserting that she had been the victim of a Fifth Amendment due process violation. [FN182] The Court ignored these arguments, stating that “[t]he Fifth Amendment has no equal protection clause.” [FN183] While repeating its mantra that the Fifth Amendment had no equivalent equal protection clause, the Court slowly began to acknowledge that the Fifth Amendment due process clause might, in fact, prohibit federal discrimination. [FN184] Finally, in Hirabayashi v. United States, [FN185] Chief Justice Stone cited Fourteenth Amendment equal protection decisions in a Fifth Amendment case. [FN186] This was relevant in that it made clear that “there was something to be learned from the fourteenth *217 amendment in determining what . . . might amount to a denial of due process under the fifth amendment.” [FN187]

      Then came Bolling v. Sharpe. [FN188] In Bolling, the Court, while discussing the limitations on the states imposed by the equal protection clause, explained that “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” [FN189] Fifth Amendment equal protection was now alive and kicking. [FN190] The Supreme Court cases that followed point to a rule of congruence. [FN191] “In case after case, fifth amendment equal protection problems are discussed on the assumption that fourteenth amendment precedents are controlling.” [FN192] The Court has repeatedly acknowledged that Fifth Amendment equal protection is the same as Fourteenth Amendment equal protection. [FN193] When the Court pronounced that equal protection “is essentially a direction that all persons similarly situated should be treated alike,” the pronouncement applied not only to Fourteenth Amendment analysis, but also to Fifth Amendment analysis. [FN194] Therefore, if the federal government is to treat similar persons similarly unless reason demands otherwise, [FN195] it directly follows that a federal circuit court should treat like cases alike unless there is a compelling justification not to.

a. Strict Scrutiny Should Apply to No-Citation Rules

      As applied, rules denying precedential value to unpublished opinions potentially classify individuals into two groups: (1) individuals receiving a particular outcome; and (2) similarly situated individuals being denied the same outcome by the same court. When a case is not published, and *218 is therefore denied precedential value, there is always the possibility that the same court, without justification, will treat a similarly situated person differently. When the Eighth Circuit decided Anastasoff, it had previously answered the identical tax refund argument in Christie. [FN196] Had the Eighth Circuit followed Weisbart, a Second Circuit case answering the same question with an opposite response, the same court would have treated two similarly situated taxpayers differently. [FN197]Such a rule, placing different burdens and benefits upon similarly situated individuals, would be vulnerable to an equal protection challenge.

      Equal protection analysis requires two inquiries: (1) what is the appropriate standard of review?; and (2) does the challenged rule satisfy that standard? [FN198] In the case of rules denying precedent to unpublished opinions, strict scrutiny is the appropriate standard of review, and no-citation rules are unable to satisfy that test.

      Three standards of review may be applied in an equal protection analysis. [FN199] At one end of the spectrum is the strict scrutiny test. The Court has applied the strict scrutiny standard to any statute which focuses on “suspect” classifications [FN200] or which inhibits a fundamental right. [FN201] At the other end of the spectrum is the rational relationship test. [FN202] The rational relationship test applies to statutes that neither focus on “suspect” or “quasi-suspect” classifications nor infringe on fundamental rights. [FN203] Almost all socioeconomic legislation

falls into this standard of review. [FN204] While the Court has not formally adopted a third, intermediate level of review, [FN205] it seems to have applied one to “quasi-*219 suspect” classifications such as gender or illegitimacy. [FN206] No-citation rules do not create suspect or quasi-suspect classifications. They do, however, potentially infringe on a fundamental right: the right to a fair judicial process. [FN207] Rules prohibiting the citation of unpublished opinions as precedent do not, therefore, fall into either the rational or intermediate levels of review; strict scrutiny is appropriate.

      A fundamental right is a right that relates to an interest protected by the Constitution. [FN208] Fair adjudication is undoubtedly a constitutional value. “Few, if any, interests under the Constitution are more fundamental than the right to a fair trial . . . .” [FN209] The Bill of Rights is largely concerned with fairness in the justice system. [FN210] Due process mandates a fair judicial process. [FN211] The Court in Griffin v. Illinois specifically recognized the fundamental nature of fairness in the equal protection realm by utilizing “equal protection analysis to require the government to provide a guaranteed minimum form of fairness to all defendants.” [FN212] To ensure this minimum form of fairness, the Court in Griffin held that a state cannot deny the poor a copy of their trial transcript for appeal purposes. [FN213] The Court has also ensured court access in the criminal justice setting as well as in some civil litigation realms. [FN214] A common thread *220 runs through all these decisions: individuals have a fundamental right to a fair judicial process. [FN215]

      When unpublished opinions are denied precedential value, however, each individual may not receive fair and “equal justice” [FN216] before the same court. Consider an example in which two criminal defendants have both committed the same act. A court with a no-citation rule holds, in an unpublished opinion, that the first defendant's actions do not fall within the scope of a particular criminal statute. Later, ignoring the unpublished opinion, the same court holds that the second defendant's identical actions do fall within the reach of the statute. Both committed the same act, yet the first individual is classified as innocent while the second is classified as a criminal. “[T]he Court has sought to guarantee a basic level of fair treatment as a fundamental constitutional right.” [FN217] Yet in a situation such as this, denying unpublished opinions precedential value results in unfair treatment. This would violate the second defendant's fundamental right to a fair judicial process because, while both defendants were similarly situated, they were treated dissimilarly without just cause. The gravity of this potential violation demands that no-citations rules be subject to strict scrutiny.

b. No-Citation Rules Cannot Satisfy Strict Scrutiny

      To satisfy strict scrutiny, no-citation rules must be necessary to promote a compelling governmental interest. [FN218] There are two justifications for denying unpublished opinions precedential value: (1) the demand on judicial resources requiring that all opinions be published would increase to an unreasonable level; and (2) parties have unequal access to unpublished opinions, so allowing them to stand as precedent favors litigants with superior resources. These arguments do not justify the abandonment of thousands of precedents. Even assuming that judicial economy and equal access to judicial opinions are compelling government interests, no-citations rules are not necessary to promote either one.

*221 i. Demand on Judicial Resources Would Not Increase

      The movement toward unpublished opinions originated with the increasing demand on judicial resources. [FN219] The idea was that limiting publication would free up some additional time. [FN220] There is no doubt that judges carry a greater caseload today than they ever have before. [FN221] As a result, this Comment does not suggest that all opinions should be published. Publication is not necessary to give an opinion precedential value. “It is merely convention that associates precedent and publication.” [FN222]

      It is argued that giving unpublished opinions precedential value would force the judges to spend more time on these opinions. [FN223] This is a weak argument. To determine an outcome in each and every case, the judge must select the relevant facts, determine the applicable law, and apply that law to the facts. This process should not change based upon whether or not an opinion is published. This Comment does not suggest that every unpublished opinion should be a great piece of literature. “Nevertheless, the basic purpose for stating reasons within an opinion or order should never be forgotten-that the decision must be able to withstand the scrutiny of analysis, against the

record evidence, as to its soundness under the Constitution and the statutory and decisional law . . . .” [FN224] If an opinion satisfies this basic purpose, which even an unpublished opinion should, a legitimate precedent is created. No additional judicial resources need be expended. In fact, Judge Richard Posner has stated that more available precedents would make the judge's job easier: “[M]ost federal circuit judges will confess that a surprising fraction of federal appeals, at least in civil cases, are difficult to decide not because there are too many precedents but because there are too few on point.” [FN225]

*222 ii. Unequal Access is a Myth

      The Advisory Council's 1973 report not only advocated the adoption of limited publication, it also recommended that these unpublished opinions not be used as precedent. [FN226] One of the driving forces behind this recommendation was the assumption that “[a]llowing the citation of unpublished opinions would give lawyers or others having special knowledge of those opinions an unfair advantage to use or withhold that knowledge.” [FN227] Unequal access is not a convincing argument. Equal access can be achieved without imposing an “undue burden.” [FN228] Both Westlaw and LEXIS make unpublished opinions readily available. [FN229] Today's world is not as reliant on the printed page. [FN230] Digital information has taken over. [FN231] “[L]egal information can be stored, accessed and retrieved in digital form including on-line subscription services, . . . CD-ROM, and the Internet. Because information is the ‘stuff’ of law, this change in technology has had a profound impact on the law's shape as well as its use.” [FN232] This digital revolution has allowed for much more effective use of information at a lower cost, both in terms of money and time. [FN233] As a result, the court would be able to make unpublished opinions easily retrievable. Access is an easily overcome obstacle. [FN234]

      Strict scrutiny demands that a rule be necessary to promote a compelling governmental interest. [FN235] Denying unpublished opinions precedent is not necessary to promote either judicial economy or equal access to judicial opinions. No-citation rules do not satisfy strict scrutiny, and therefore, do not satisfy the equal protection demanded by the Fifth Amendment.

*223 IV. Conclusion

      Anastasoff signaled the first attempt by a circuit court to invalidate as unconstitutional a limited publication rule that denies precedential effect to unpublished opinions. While Anastasoff has been vacated as moot, it has created ripples that have spread through the courts and legal community. While these rules regarding unpublished opinions do not violate Article III as Anastasoff suggests, they do violate both procedural due process and equal protection. The Fifth Amendment demands not only that judicial procedures be fair, but also that courts treat like cases alike, and this is simply not achievable when denying precedential value to unpublished opinions. As a result, any rule that prevents unpublished opinions from carrying precedential value should be abolished. The Fifth Amendment demands it.

[FNa1]. Jon A. Strongman

[FN1]. Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Reform 119, 122 (1994).

[FN2]. Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 189 (1999).

[FN3]. Id. (citing Admin. Office of the U.S. Courts, 1996 Judicial Business of the United States Courts 15, 47 tbl.S-3 (1997)). While Judge Martin found the average unpublished opinion rate to be around 76%, the rate was as high as 90.3% in the Fourth Circuit as of 1997. Id. See also Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals, 54 Vand. L. Rev. 71, 72 & n.1 (2001) (finding that 78.1% of federal appellate decisions were unpublished according to Judicial Bus. of the U.S. Courts: 1999 Annual Report of the Director 49 tbl.S-3 (2000)).

[FN4]. 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, 760 (1995).

[FN5]. 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).

[FN6]. Id. at 899.

[FN7]. Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000) (en banc), vacating as moot 223 F.3d 898 (8th Cir. 2000).

[FN8]. Anastasoff, 223 F.3d at 900.

[FN9]. Random House Unabridged Dictionary 1563 (2d ed. 1993) (defining “publish” as “to issue publicly the work of”).

[FN10]. Martin, supra note 2, at 185.

[FN11]. Id.

[FN12]. Id.

[FN13]. Id.

[FN14]. Id. at 186 (stating that beyond these requirements, the “unpublished” label “has become a fine, almost meaningless distinction in a world of electronic legal research”).

[FN15]. Martineau, supra note 1, at 121 (citing 2 Coke's Rep. iii-iv (1777)).

[FN16]. William L. Reynolds & William M. Richman, The Non-Precedential Precedent-Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167, 1168-69 (1978).

[FN17]. Id. (discussing the fact that early commentators suggested not providing an opinion for every decision and not publishing every opinion).

[FN18]. Richard A. Posner, The Federal Courts: Challenge and Reform 392 tbl.A.2 (1996).

[FN19]. Id.

[FN20]. Id. at 397-98 tbl.A.3.

[FN21]. Id. at 400 tbl.A.4.

[FN22]. Martineau, supra note 1, at 121.

[FN23]. Id.

[FN24]. Id.

[FN25]. Comm. on Use of Appellate Court Energies of the Advisory Council on Appellate Justice, Standards for Publication of Judicial Opinions, FJC Research Series No. 73-2 (1973) [hereinafter Advisory Council Report].

[FN26]. Id. at 3.

[FN27]. Id. at 15-17. The committee suggested that to be published an opinion must meet at least one of four standards: (1) “The opinion lays down a new rule of law, or alters or modifies an existing rule”; (2) “[t]he opinion involves a legal issue of continuing public interest”; (3) “[t]he opinion criticizes existing law”; and (4) “[t]he opinion resolves an apparent conflict of authority.” Id.

[FN28]. Id. at 18 (“Opinions not designated for publication should not be cited as precedent by any court or in any brief or other materials presented to the court.”).

[FN29]. See id. at 18-19 (discussing how granting unpublished opinions precedent would undercut the general goal of limited publication). The committee set out five specific reasons for a non-citation rule: (1) “It is unfair to allow counsel, or others having special knowledge of an unpublished opinion, to use it if favorable and withhold it if unfavorable”; (2) “[c]ost will be reduced by eliminating the need to obtain and examine the mass of opinions that are not designated for publication”; (3) “[t]he absence of a non-citation rule would encourage the inclusion in opinions not designated for publication of facts and details of reasoning, thus frustrating the purposes underlying non-publication”; (4) “[c]ost and delay of cases appealed only because they are apparently at odds with unpublished opinions, can be reduced”; and (5) “[g]reat difficulty, if not impossibility, would be involved in determining whether an unpublished opinion has been overruled.” Id.

[FN30]. Martineau, supra note 1, at 125.

[FN31]. See id. at 125-26 (listing four major consistencies among the adopted rules, including: (1) requiring a majority decision panel to make a publication decision as quickly as possible; (2) requiring that both the majority and dissenting opinions be published; (3) defining specific guidelines for judges to follow when making publication decisions; and (4) prohibiting citation of unpublished rules unless there are limited circumstances).

[FN32]. See id. at 126 (prohibiting “citation to unpublished opinions except for the limited purposes of establishing res judicata, collateral estoppel, or law of the case”).

[FN33]. For the circuits' rules on citation to unpublished opinions, see 1st Cir. R. 36(b)(2)(F); 2d Cir. § 0.23; 3d Cir. I.O.P. 5.3, 5.8; 4th Cir. R. 36(c); 5th Cir. R. 47.5; 6th Cir. R. 28(g); 7th Cir. R. 53(b)(2)(iv); 8th Cir. R. 28A(i); 9th Cir. R. 36-3; 10th Cir. R. 36.3; 11th Cir. R. 36-2; D.C. Cir. R. 28(c); Fed. Cir. R. 47.6(b).

[FN34]. 1st Cir. R. 36(b)(2)(F); 2d Cir. § 0.23; 7th Cir. R. 53(b)(2)(iv); 9th Cir. R. 36-3; D.C. Cir. R. 36; Fed. Cir. R. 47.6(b).

[FN35]. 3d Cir. I.O.P. 5.3, 5.8; 5th Cir. R. 47.5.4; 8th Cir. R. 28A(i); 10th Cir. R. 36.3; 11th Cir. R. 36-2.

[FN36]. 4th Cir. R. 36(c); 5th Cir. R. 47.5.3; 6th Cir. R. 28(g).

[FN37]. 7th Cir. R. 53(b)(2)(iv).

[FN38]. 1st Cir. R. 36(b)(2)(F); 2d Cir. § 0.23; 7th Cir. R. 53(b)(2)(iv); 9th Cir. R. 36-3; D.C. Cir. R. 28(c); Fed. Cir. R. 47.6(b).

[FN39]. See, e.g., 2d Cir. R. § 0.23 (stating that unpublished opinions of the circuit should not be cited before “this or any other court”).

[FN40]. See, e.g., 7th Cir. R. 54(e) (“[N]o unpublished opinion or order of any court may be cited . . . if citation is prohibited in the rendering court.”).

[FN41]. Re Rules of the United States Court of Appeals for the Tenth Circuit, Adopted November 18, 1986, 955 F.2d 36, 36 (10th Cir. 1992). In his dissent, Judge Holloway stated that “[t]o deny a litigant this right may well have overtones of a constitutional infringement because of the arbitrariness, irrationality, and unequal treatment of the

rule.” Id. at 37.

[FN42]. 10th Cir. R. 36.3.

[FN43]. 8th Cir. R. 28A(i); 10th Cir. R. 36.3; 11th Cir. R. 36-2.

[FN44]. 3d Cir. I.O.P. 5.3 (stating that an unpublished opinion should be labeled “unreported, not precedential”).

[FN45]. 3d Cir. I.O.P. 5.8 (“[T]he court by tradition does not cite to its unreported opinions.”).

[FN46]. 3d Cir. R. 28.3(a) (listing what information should be in a citation to an unreported case).

[FN47]. 5th Cir. R. 47.5.4.

[FN48]. 5th Cir. R. 47.5.3.

[FN49]. Id.

[FN50]. 4th Cir. R. 36(c); 6th Cir. R. 28(g).

[FN51]. 6th Cir. R. 28(g).

[FN52]. Mark D. Hinderks & Steve A. Leben, Restoring the Common in the Law: A Proposal for the Elimination of Rules Prohibiting the Citation of Unpublished Decisions in Kansas and the Tenth Circuit, 31 Washburn L.J. 155, 161 (1992).

[FN53]. 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).

[FN54]. Hinderks & Leben, supra note 52, at 215.

[FN55]. 434 U.S. 257 (1978).

[FN56]. Hinderks & Leben, supra note 52, at 215 n.406.

[FN57]. Browder, 434 U.S. at 258-59 n.1 (“Finally, petitioner questioned the validity of the Seventh Circuit's ‘unpublished opinion’ rule. We leave these questions to another day.”).

[FN58]. 429 U.S. 917 (1976).

[FN59]. Re Rules of the United States Court of Appeals for the Tenth Circuit, Adopted November 18, 1986, 955 F.2d 36, 37 n.1 (10th Cir. 1992) (Holloway, J., dissenting).

[FN60]. Do-Right Auto Sales, 429 U.S. at 917.

[FN61]. Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).

[FN62]. Id.

[FN63]. 26 U.S.C. § 6511(b)(1) (1994).

[FN64]. Anastasoff, 223 F.3d at 899.

[FN65]. Id.

[FN66]. Id.

[FN67]. 26 U.S.C. § 7502(a) (1994).

[FN68]. No. 91-2375MN, 1992 U.S. App. LEXIS 38446 (8th Cir. Mar. 20, 1992).

[FN69]. Id. at *2.

[FN70]. Id.

[FN71]. Id. at *7.

[FN72]. Id. at *7-8.

[FN73]. Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).

[FN74]. Id.

[FN75]. 8th Cir. R. 28A(i).

[FN76]. Anastasoff, 223 F.3d at 899.

[FN77]. Id. at 900.

[FN78]. Id. at 905.

[FN79]. See id. (analyzing powers given to the judiciary by the Constitution).

[FN80]. Id. at 900.

[FN81]. Id. at 903.

[FN82]. Id. at 905.

[FN83]. 222 F.3d 93 (2d Cir. 2000).

[FN84]. Anastasoff v. United States, 235 F.3d 1054, 1055 (8th Cir. 2000) (en banc), vacating as moot 223 F.3d 898 (8th Cir. 2000).

[FN85]. Id. at 1055-56.

[FN86]. Id. at 1056.

[FN87]. Id.

[FN88]. See id. (“The constitutionality of that portion of Rule 28A(i) which says that unpublished opinions have no

precedential effect remains an open question in this Circuit.”).

[FN89]. Despite the fact that the Eighth Circuit vacated Anastasoff, other courts have continued to cite the decision. See Amgen, Inc. v. Hoechst Marion Roussel, Inc., 126 F. Supp. 2d 69, 136 n.40 (D. Mass. 2001) (citing to the vacated Anastasoff “[f]or the propriety of citing an unpublished opinion”); MacNeill Eng'g Co. v. Trisport, Ltd., 126 F. Supp. 2d 51, 58 n.3 (D. Mass. 2001) (same), appeal dismissed per stipulation, 2001 U.S. App. LEXIS 17014 (Fed. Cir. Jun. 22, 2001) (unpublished table decision).

[FN90]. See Hart v. Massanari, No. 99-56472, 2001 U.S. App. LEXIS 20863, at *2 (9th Cir. Sept. 24, 2001) (rejecting the Anastasoff analysis and holding the Ninth Circuit Rule 36-3 constitutional).

[FN91]. In Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 260, (5th Cir. 2001) (Smith, J., dissenting), the Fifth Circuit denied a petition for rehearing en banc. Three circuit judges dissented, however, stating that the rehearing en banc “would have given this court the opportunity to examine the question of unpublished opinions generally, an issue that is important to the fair administration of justice in this circuit.” Id. The dissent went on to discuss how, in the case before them, the Dallas Area Rapid Transit had been the victim of inconsistent rulings by the Fifth Circuit due to the fact that an earlier unpublished opinion was not considered precedent under Fifth Circuit Rule 47.5.4. Id. at 260-61.

[FN92]. In Massanari, a lawyer cited an unpublished opinion to the Ninth Circuit in violation of Ninth Circuit Rule 36-3. 2001 U.S. App. LEXIS 20863, at *2. A discipline action was brought, and the lawyer defended on the ground that the rule was unconstitutional. Id. The court upheld the rule, but held that the violation was not willful and did not merit sanctions. Id. at *61.

[FN93]. 1 James Kent, Commentaries on American Law, *475.

[FN94]. William O. Douglas, Stare Decisis 8 (1949).

[FN95]. Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 Emory L.J. 437, 445 (1996).

[FN96]. Id. (stating that prior similar decisions were used primarily as evidence of procedural matters).

[FN97]. Id. (“If a judge did not approve of a previous decision, or even of a previous custom of the court, he might say that it was wrong and disregard it.”).

[FN98]. Id. at 446 (stating that while these private reports normally contained facts, statements made by the judge or counselors, and reporter comments, “they were often quite unreliable”).

[FN99]. Id.

[FN100]. See id. (discussing the emergence of precedent as an important tool in the periodic struggle between common-law courts and the King).

[FN101]. Anastasoff v. United States, 223 F.3d 898, 900 n.6 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc) (“Coke used precedent, and emphasized it to a greater degree than his predecessors . . . .”).

[FN102]. Berman & Reid, supra note 95, at 446-47.

[FN103]. Anastasoff, 223 F.3d at 900 n.6.

[FN104]. See Berman & Reid, supra note 95, at 447 (“Coke's precedents were still only ‘examples' of the true rule

and were not in and of themselves authoritative sources of those rules.”).

[FN105]. See id. (“[T]he earliest attempt to develop the distinction between dictum and holding was that of Chief Justice Vaughan of the Court of Common Pleas in 1673.”).

[FN106]. See Matthew Hale, The History of the Common Law of England 68 (Fred B. Rothman & Co. 1987) (1713) (stating that judicial decisions “have a great Weight and Authority in [sic] Expounding, Declaring, and Publishing what the Law of this Kingdom is . . . .”).

[FN107]. See id. (stating that judicial decisions are “a greater Evidence thereof, than the Opinion of any private Per ons . . . .”).

[FN108]. Berman & Reid, supra note 95, at 450.

[FN109]. Id.

[FN110]. Id.

[FN111]. Id. at 510.

[FN112]. 501 U.S. 808 (1991).

[FN113]. Id. at 827.

[FN114]. Id. at 828-30 (overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989)).

[FN115]. Id. at 828 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).

[FN116]. U.S. Const. art. III, § 1.

[FN117]. See Anastasoff v. United States, 223 F.3d 898, 900 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc) (stating that the Framers of the Constitution considered precedent, intending it to limit judicial power).

[FN118]. See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1550 (2000) (arguing that because the Constitution neither sets out the content of stare decisis nor grants the exclusive power of defining stare decisis to the judiciary, “the policy of stare decisis simply cannot be said to be one of constitutional stature and must lie within the power of Congress to abrogate or modify, pursuant to the Necessary and Proper Clause”).

[FN119]. See Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23, 27-28 (1994) (arguing that, in theory, the doctrine of precedent may force a court to choose a prior decision over the Constitution, despite the fact that the court has an obligation to prefer the Constitution).

[FN120]. Anastasoff, 223 F.3d at 900.

[FN121]. U.S. Const. art. III, §§ 1 & 2, cl. 1.

[FN122]. Id.

[FN123]. Paulsen, supra note 118, at 1571.

[FN124]. Anastasoff, 223 F.3d at 900.

[FN125]. Id. (citing, among others, commentaries by James Wilson, James Kent, and William Blackstone).

[FN126]. Id. at 900 n.6 (“Coke's struggle against tyranny of the Stuarts, which the Framers identified with their own against King George, made him the legal authority most admired and most often cited by American patriots.”).

[FN127]. Paulsen, supra note 118, at 1572 (stating that Hamilton, in The Federalist No. 78, “notes the desirability and inevitability of a system of precedent”).

[FN128]. The Federalist No. 78, at 496 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961).

[FN129]. Id.

[FN130]. Paulsen, supra note 118, at 1572.

[FN131]. Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 663 (1999).

[FN132]. Paulsen, supra note 118, at 1573-74.

[FN133]. Id. at 1574 (“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.”).

[FN134]. Lee, supra note 131, at 663.

[FN135]. Paulsen, supra note 118, at 1574.

[FN136]. Id.

[FN137]. Id.

[FN138]. Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, § 17.8, at 644 (2d ed. 1992).

[FN139]. City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

[FN140]. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171 (1951) (Frankfurter, J., concurring).

[FN141]. U.S. Const. amend. V.

[FN142]. Rotunda & Nowak, supra note 138, § 17.1, at 579.

[FN143]. Id.

[FN144]. Two questions must be answered when examining a procedural due process challenge: (1) was there a deprivation of life, liberty, or property?; and (2) did the procedure constitute due process of law? Ingraham v. Wright, 430 U.S. 651, 672 (1977). This Comment assumes that there is a legitimate deprivation of life, liberty, or property at stake. For example, a criminal facing a prison sentence would most definitely have a legitimate deprivation of liberty at stake. For a discussion of what constitutes life, liberty, or property for procedural due process purposes, see Rotunda & Nowak, supra note 138, § 17.2-17.6, at 580-643.

[FN145]. “A fair trial in a fair tribunal is a basic requirement of due process.” Holt v. Virginia, 381 U.S. 131, 136 (1965) (quoting In re Murchison, 349 U.S. 133, 136 (1955)).

[FN146]. See generally Rotunda & Nowak, supra note 138, § 17.8, at 644-45 (discussing the specific aspects of the adversarial process that due process may require).

[FN147]. In Joint Anti-Fascist Refugee Commission. v. McGrath, Justice Frankfurter described this notion of fairness: No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done. 341 U.S. 123, 171-72 (1951) (Frankfurter, J., concurring).

[FN148]. Random House Unabridged Dictionary 692 (2d ed. 1993) (defining fair as “legitimately sought, pursued, done, given, etc., proper under the rules”).

[FN149]. McGrath, 341 U.S. at 162-63.

[FN150]. Rotunda & Nowak, supra note 138, § 17.8, at 644 (“The Court has demonstrated a consistent belief that the adversary process is best designed to safeguard individual rights against arbitrary action by the government.”); Laurence H. Tribe, American Constitutional Law § 10-7, at 664 (2d ed. 1988) (“These procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary government action.”).

[FN151]. See In re Murchison, 349 U.S. 133, 136 (1955) (stating that fairness is fundamental to due process).

[FN152]. 256 F.3d 260 (5th Cir. 2001).

[FN153]. No. CA3:97-CV-1834-BC, 1998 U.S. App. LEXIS 15493 (N.D. Tex. Sept. 29, 1998).

[FN154]. Id. at *24.

[FN155]. Anderson v. Dart. 180 F.3d 265 (5th Cir. 1999) (per curiam) (unpublished) (table), cert. denied, 528 U.S. 1062 (1999).

[FN156]. Under Fifth Circuit Rule 47.5.3, unpublished opinions issued before January 1, 1996 are considered precedent. Fifth Circuit Rule 47.5.4, however, states that all opinions issued after January 1, 1996 are not precedent. Anderson was issued in 1999, and therefore fell within Fifth Circuit Rule 47.5.4.

[FN157]. Williams, 256 F.3d at 261.

[FN158]. Id.

[FN159]. See id. at 260 (Smith, J. dissenting) (“If the Anderson panel had published its opinion, it would have been binding on the panel in the instant case-Williams-and the result here would have been different.”).

[FN160]. Id. at 263.

[FN161]. Fuentes v. Shevin, 407 U.S. 67, 97 (1972) (stating that the essential purpose of due process is “to prevent unfair and mistaken deprivations”).

[FN162]. See Martin, supra note 2, at 190 (stating that there is a “relative straightforwardness” to the legal questions

in an unpublished opinion).

[FN163]. Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 223 (1999).

[FN164]. See supra note 3.

[FN165]. See Merritt & Brudney, supra note 3, at 107 (presenting evidence that unpublished opinions are not routine). I consider a “law-making” decision to be one that fits one of the criteria set out by the Advisory Council Report. For a list of the criteria set out by the Advisory Council Report, see supra note 25.

[FN166]. Merritt & Brudney, supra note 3, at 74.

[FN167]. Id. at 107.

[FN168]. Id. at 119 (“Together, these findings suggest that panels authoring unpublished opinions reach some results with which other reasonable judges would disagree.”).

[FN169]. Martineau, supra note 1, at 135.

[FN170]. Id. at 135-36.

[FN171]. Id.

[FN172]. Martin, supra note 2, at 189. See also Merritt & Brudney, supra note 3 (stating that nearly 80% of all opinions are unpublished).

[FN173]. Posner, supra note 18, at 167.

[FN174]. Id.

[FN175]. City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). See also Plyer v. Doe, 457 U.S. 202, 216 (1982) (stating that those “similarly circumstanced” should be treated similarly); Reed v. Reed, 404 U.S. 71, 76 (1971) (same); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (same).

[FN176]. U.S. Const. amend. XIV, § 1.

[FN177]. Id.

[FN178]. See generally City of Cleburne, 473 U.S. at 439-40 (discussing generally the Fourteenth Amendment equal protection clause).

[FN179]. Kenneth L. Karst, The Fifth Amendment's Guarantee of Equal Protection, 55 N.C. L. Rev. 541, 542-43 (1977).

[FN180]. Id.

[FN181]. 256 U.S. 377 (1921).

[FN182]. Id. at 392.

[FN183]. Id.

[FN184]. See Detroit Bank v. United States, 317 U.S. 329, 338 (1943) (noting that although not present in the instant case, discriminatory legislation may violate the due process clause of the Fifth Amendment because of its arbitrary and capricious character); Currin v. Wallace, 306 U.S. 1, 13-14 (1939) (stating that even if the Fifth Amendment had an equal protection component, it was not implicated in the present case); Steward Mach. Co. v. Davis, 301 U.S. 548, 584-85 (1937) (same).

[FN185]. 320 U.S. 81 (1943).

[FN186]. Id. at 100. Justice Stone cited Yick Wo v. Hopkins, 118 U.S. 356 (1886), Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926), and Hill v. Texas, 316 U.S. 400 (1942), for the proposition that “legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.” Id.

[FN187]. Karst, supra note 179, at 545.

[FN188]. 347 U.S. 497 (1954).

[FN189]. Id. at 500.

[FN190]. The development of Fifth Amendment equal protection demonstrates the flexibility of precedent described in Part II.D.3 of this Comment.

[FN191]. Karst, supra note 179, at 554; see, e.g., Washington v. Davis, 426 U.S. 229, 239 (1976) (recognizing that the Fifth Amendment has an equal protection component); Frontiero v. Richardson, 411 U.S. 677, 682 (relying on Fourteenth Amendment precedent to determine the validity of a federal statute).

[FN192]. Id.

[FN193]. E.g., Buckley v. Valeo, 424 U.S. 1, 93 (1976); Davis, 426 U.S. at 239; Frontiero, 411 U.S. at 690-91 .

[FN194]. City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

[FN195]. Griffin v. Illinois, 351 U.S. 12, 21 (1956) (“The equality at which the ‘equal protection’ clause aims is not a disembodied equality.”) (Frankfurter, J., concurring) (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)).

[FN196]. Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).

[FN197]. Anastasoff v. United States, 235 F.3d 1054, 1054 (8th Cir. 2000) (en banc), vacating as moot 223 F.3d 898 (8th Cir. 2000).

[FN198]. See generally Rotunda & Nowak, supra note 138, § 18.3, at 12-41 (discussing generally the standards of review for equal protection).

[FN199]. Id.

[FN200]. See, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944) (calling racial classifications “suspect” and demanding that such classifications be “subject . . . to the most rigid scrutiny”).

[FN201]. See, e.g., Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972) (applying strict scrutiny to a statute inhibiting the fundamental right of free speech).

[FN202]. See Tribe, supra note 150, § 16-2, at 1439-40 (discussing the minimum requirement of rationality); see also Rotunda & Nowak, supra note 138, § 18.3, at 22 (discussing the requirements of the rational relationship test).

[FN203]. Rotunda & Nowak, supra note 138, § 18.3, at 22.

[FN204]. See Tribe, supra note 150, § 16-2, at 1439 (“The Supreme Court, from its earliest examination of socioeconomic regulation, has considered that equal protection demands reasonableness in legislative and administrative classifications.”).

[FN205]. Rotunda & Nowak, supra note 138, § 18.3, at 16-17.

[FN206]. See Craig v. Boren, 429 U.S. 190, 210 (1976) (invalidating an Oklahoma statute containing a “gender-based differential.”); Levy v. Louisiana, 391 U.S. 68, 72 (1968) (invalidating a statute that denied an illegitimate child recovery for the wrongful death of his parent).

[FN207]. See Re Rules of the United States Court of Appeals for the Tenth Circuit, Adopted November 18, 1996, 955 F.2d 36, 37 (1992) (Holloway, J., dissenting) (stating that not allowing a litigant to cite a previous case violates “fundamental fairness” (emphasis added)); Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 263 (5th Cir. 2001) (“[O]ne must question the fundamental fairness of having two opinions from the same court, one giving DART Eleventh Amendment immunity and the other . . . taking that immunity away” (emphasis added)).

[FN208]. See, Rotunda & Nowak, supra note 138, § 15.7, at 427 (stating that fundamental rights merit judicial review because their value is essential to liberty in our society).

[FN209]. Gentile v. State Bar, 501 U.S. 1030, 1075 (1991).

[FN210]. See Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (stating that the “Sixth Amendment right to counsel exists ‘in order to protect the fundamental right to a fair trial”’ (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984))); Brown v. Louisiana, 447 U.S. 323, 330 (1980) (“The right to jury trial guaranteed by the Sixth and Fourteenth Amendments ‘is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants.”’ (quoting Duncan v. Louisiana, 391 U.S. 145, 158 (1968))).

[FN211]. See Hobby v. United States, 468 U.S. 339, 346 (1984) (noting that an infringement of the fundamental right of fairness violates due process).

[FN212]. Rotunda & Nowak, supra note 138, § 18.41, at 496.

[FN213]. Griffin v. Illinois, 351 U.S. 12, 19 (1956).

[FN214]. See Boddie v. Connecticut, 401 U.S. 371, 374 (1971) (denying the state the right to charge filing fees for access to civil court for divorce proceedings); see also Douglas v. California, 372 U.S. 353, 356-57 (1963) (holding that the state had to provide counsel for indigents on an appeal as a matter of right).

[FN215]. See Griffin, 351 U.S. at 19 (stating the demand for “equal justice”).

[FN216]. Id.

[FN217]. Rotunda & Nowak, supra note 138, § 18.41, at 497.

[FN218]. Rotunda & Nowak, supra note 138, § 18.3, at 15.

[FN219]. See supra notes 18-27 and accompanying text (discussing the increased workload of federal courts and the

corresponding push for a reduction in the number of published opinions).

[FN220]. Advisory Council Report, supra note 25, at 18-19.

[FN221]. Posner, supra note 18, at 391-93 tbl.A.2.

[FN222]. Id. at 166.

[FN223]. Anastasoff v. United States, 223 F.3d 898, 904 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).

[FN224]. Re Rules of the United States Court of Appeals for the Tenth Circuit, Adopted November 18, 1986, 955 F.2d 36, 38 (10th Cir. 1992) (Holloway, J., dissenting).

[FN225]. Posner, supra note 18, at 166.

[FN226]. Martineau, supra note 1, at 123.

[FN227]. Id. at 124-25.

[FN228]. Re Rules of the United States Court of Appeals for the Tenth Circuit, Adopted November 18, 1986, 955 F.2d at 37 (Holloway, J., dissenting).

[FN229]. Martin, supra note 2, at 185.

[FN230]. Kirt Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Cal. L. Rev. 541, 544 (1997).

[FN231]. See id. (noting that now legal information can be stored digitally in a number of ways).

[FN232]. Id. (citations omitted).

[FN233]. While online services such as LEXIS and Westlaw can be expensive, it would not be too burdensome for the courts to put their unpublished opinions on a free website. Some circuits, such as the First and Sixth, put their opinions on the Internet. Law schools also frequently maintain databases of circuit court decisions.

[FN234]. See Re Rules of the United States Court of Appeals for the Tenth Circuit, Adopted November 18, 1986, 955 F.2d 36, 37 (10th Cir. 1992) (“We can make the rulings, together with a simple index, available at our circuit library and can distribute the rulings to the clerks of the district courts, to the state bar associations, and to other depositories at law schools, without an undue burden.”).

[FN235]. Rotunda & Nowak, supra note 138, § 18.3, at 15.

50 U. Kan. L. Rev. 195