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August 11, 2005


Ed Trompke

Charlie, I agree that the rule against citing unpublished opinions opens the door to inconsistent opinions and lack of respect for the rule of stare decisis. The rule had a purpose when the only source of opinions was paper books, and only larger firms (or litigious smaller firms) had access to unpublished opinions. Given the almost unlimited storage capacity of, and search power in electronic and optical storage media, courts should publicly explain when they announce new rules of law, or when they announce exceptions to established rules. Anything less can diminish the integrity of the courts in the eyes of a sometimes cynical and suspicious public.

Judge Kozinski appears to be a stickler for consistency. His position on this issue seems out of place.

It is interesting that the court was able to cite the unpublished opinion "not as precedent, of course, but because a conflict with a previously issued memorandum disposition is a factor weighing in favor of a rehearing en banc." Will the Supreme Court weigh in on this practice? There was a fair amount of discussion about in a few years ago. Has momentum fallen off, or is there no reason for the court to address it?

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