Professor Amy E. Sloan (Baltimore) recently posted an Article entitled If You Can't Beat 'Em, Join 'Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts
on SSRN. Here is the Abstract:
For many years, judges and academics have debated the pros and cons of non-precedential judicial opinions in the federal appellate courts. Although the utility, necessity, and advisability of non-precedential opinions remain interesting issues to debate, at this point they are somewhat beside the point. Academics have lost the debate on non-precedential opinions. Judges control whether non-precedential opinions are permissible, and judges are not going to give them up anytime soon.
So, as the saying goes, if you can't beat 'em, join 'em. Rather than continue to debate the merits of non-precedential opinions, the better course of action is to find a principled way to integrate them into the judicial system, both to provide clarity regarding the weight of the opinions and to preserve the legitimacy of the federal appellate courts.
This article argues that Federal Rule of Appellate Procedure 32.1, which eliminated citation restrictions on non-precedential opinions, should be revised to integrate non-precedential opinions into the judicial system. Specifically, the rule should expressly authorize non-precedential opinions, establish uniform procedures governing their issuance, and define their authoritative value. The easiest answer to this last issue is to make the opinions persuasive authority. A bolder step, and one this article advocates, would be to create a new category of "overrulable" authority to give non-precedential opinions some weight without giving them full precedential value. The article concludes that the federal judiciary must take steps to institutionalize non-precedential opinions in a way that preserves the system of precedent.
The full-text version of this Article may be downloaded by visiting http://ssrn.com/abstract=1280962