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REPORT OF THE COMMITTEE ON FEDERAL COURTS 
ON THE SECOND CIRCUIT'S RULE REGARDING
CITATION OF SUMMARY ORDERS

The Committee on Federal Courts recommends that the United States Court of Appeals for the Second Circuit amend its rules to permit limited citation of the Court's summary orders. At present, the Court's rules prohibit the citation of these unpublished opinions, no matter how pertinent to or dispositive of the issues under consideration. This rule is more restrictive than the rules in most other circuits, which permit citation of unpublished opinions in some circumstances. The rationales offered for the rule do not survive close scrutiny.

The Committee therefore recommends that the Court modify its rule to permit limited citation of summary orders. The proposed rule would provide that citation of summary orders is disfavored, but the Committee recommends that the rule should permit citation where counsel believe that the Court's disposition of a prior case by summary order has substantial persuasive value beyond that of any reported decision. Counsel would be required to provide a copy of the summary order to the Court and other counsel.

Discussion

The Court of Appeals decides appeals through two principal methods: published opinions and unpublished summary orders. Summary orders are on the average five to six pages long and typically contain an explanation of the decision for the benefit of the parties and the Supreme Court.^* In recent years, the Second Circuit has disposed of approximately 60-70% of appeals through summary orders.

Section 0.23 of the Local Rules of the Second Circuit Relating to the Organization of the Court addresses summary orders as follows:

The demands of an expanding case load require the court to be ever conscious of the need to utilize judicial time effectively. Accordingly, in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by a written opinion, disposition will be made in open court or by summary order.

Where a decision is rendered from the bench, the court may deliver a brief oral statement, the record of which is available to counsel upon request and payment of transcription charges. Where disposition is by summary order, the court may append a brief written statement to that order. Since these statements do not constitute formal opinions of the court and are unreported or not uniformly available to all parties, they shall not be cited or otherwise used in unrelated cases before this or any other court.

The Federal Courts Committee believes that this complete prohibition on the citation of summary orders does not serve the interests of justice or judicial economy. The pervasive use of summary orders has created a vast body of unpublished decisions which are often pertinent to issues arising before the Court, but which cannot be brought to the Court's attention under the current rule. The Committee is aware of cases where the Court has previously ruled by summary order on the precise contention being made in a pending case, on indistinguishable facts, and of other cases where a summary order may be the only authority on point.

The inability under the current rule to bring a highly pertinent summary order to the attention of the Court leads to unnecessary briefing and argument by the parties and wastes judicial time and effort. It is also odd to have a body of decisional law that cannot be cited yet may be recalled by judges who participated in creating it or may be found by law clerks doing research. Perhaps most significantly, the current rule risks the possibility that two identical cases could be decided inconsistently, in violation of the courts' most basic obligation to treat like cases the same.

The majority of other circuits have recognized that the citation of unpublished opinions is appropriate in some circumstances, and they have adopted rules which permit limited citation of unpublished opinions. For example, the rules of the Fourth Circuit and Sixth Circuit provide that citation of the Court's unpublished dispositions is "disfavored," but unpublished opinions "may be cited" if "counsel believes . . . that an unpublished disposition of any court has precedential value in relation to a material issue in a case and that there is no published disposition that would serve as well." (See Fourth Circuit Rule 36(c); Sixth Circuit Rule 24(c)).^** The Fourth Circuit and Sixth Circuit rules also require that counsel citing an unpublished disposition serve a copy of the prior disposition on the parties and the court. The rules of the Eighth Circuit and Tenth Circuit are in substance the same. (See Eighth Circuit Rule 28A(k); Tenth Circuit Rule 36.3).

The Fifth Circuit and Eleventh Circuit allow essentially unlimited citation of summary dispositions whenever counsel finds that they have persuasive value, as long as a copy is served on counsel and the court. (See Fifth Circuit Rule 47.5.4; Eleventh Circuit Rule 36-2). The Third Circuit has no rule at all limiting the citation of unpublished opinions, and we are informed that counsel in that Circuit routinely cite unpublished opinions when they believe them pertinent.

Both the Tenth Circuit and the Fifth Circuit amended their rules in recent years to permit citation of summary dispositions. Prior to 1993, the Tenth Circuit apparently imposed a complete prohibition on the citation of summary orders. In November 1993, the Tenth Circuit adopted its present rule, permitting limited citation of summary orders, on a trial basis. (See Tenth Circuit General Order, filed November 29, 1993). The Tenth Circuit's order made clear that the Court would "evaluate the effectiveness" of the new rule during a two-year trial period, and it invited interested parties to submit written comments on the new rule. After this period of evaluation, the Tenth Circuit made the current rule permanent, effective January 1, 1996.

The Fifth Circuit also amended its rule, effective January 1, 1996, to permit citation of summary dispositions. The old rule provided that "an unpublished opinion should normally be cited only when the doctrine of res judicata, collateral estoppel or law of the case is applicable." (See Fifth Circuit Rule 47.5.3). The new rule is applicable to summary orders issued after January 1, 1996. Although the new rule makes clear that summary orders are "not precedent", the rule recognizes that an unpublished opinion "may . . . be persuasive," and provides that it "may be cited" as long as a copy is served on counsel and the court. (See Fifth Circuit Rule 47.5.4).

The Committee is aware of two rationales which have been advanced to support the current prohibition of citation of summary orders, but we do not believe either is persuasive. The principal justification that has been advanced for prohibiting the citation of summary orders is that they are not readily or uniformly available to litigants, and thus that it would allegedly give certain parties an unfair advantage to permit the citation of summary orders. Indeed, the current rule expressly states that citation of summary orders is not permitted because they are "not uniformly available to all parties."

To begin with, any assumption that summary orders are not "available" is no longer true. The Court's summary orders are now routinely available on Westlaw and Lexis. Summary orders are thus as easily researched through these computerized services as any other decision of the Court of Appeals. The more liberal rules of the other circuits clearly recognize this basic fact.

In addition, the Court has made all of its summary orders since November 1995 available on the Internet through the Appellate Bulletin Board Service and Pace University Law School's website. Thus, the Court's summary orders are also now available free of charge to anyone with access to the Internet.

We recognize that some lawyers do not subscribe to Lexis or Westlaw or to the Internet. In this sense, summary orders are not "uniformly" available. However, there are countless types of other authorities -- such as slip opinions, other unreported decisions, state court reporters, U.S. Law Week and so forth -- which are also not uniformly available in this sense. Moreover, the tools available to search for published opinions -- including computerized services and extensive volumes of digests -- are similarly not uniformly available. We do not believe that a lack of uniform availability should affect a party's ability to cite relevant authorities, as long as summary orders are widely available.

To render the most consistent and thoughtful decisions, the Court should be interested in receiving the most thorough research from whatever source, as opposed to focusing on whether both sides have equal access to a more limited subset of prior cases. Moreover, the Court of Appeals undoubtedly has access to summary orders through its memory and through computerized services available to it.

We thus do not believe that the ability to cite a case should depend on whether it is "uniformly" available. Recent data suggest that Westlaw or Lexis are in fact widely available.

In 1996, a committee of the New York State Bar Association commissioned a survey of a broad sample of its members. The results of the survey indicate that:

-- virtually all law firms with ten or more members had access to at least one of the computerized services;

-- of attorneys who practice in firms of five or fewer lawyers -- who constitute about 67% of the New York Bar, about 29% have access to Lexis and about 31% have Westlaw access. Although many may have just one of the services, the data suggest that over 40% have no computerized service.^***

While some members of our Committee remain troubled by practitioners' lack of equal access to summary orders, a majority believes that summary orders are available sufficiently widely that the lack of uniform access to all practitioners is not a serious problem. Moreover, we believe that some practitioners may similarly lack equal access to published orders and other relevant authorities. Uniform availability should not be the litmus test, so long as summary orders are widely available and particularly when balanced against the goal of consistent adjudications. Our proposed rule would, of course, guarantee that all parties will be provided with a copy of any summary order cited by a party.

The other justification which has been advanced for the prohibition of citation of summary orders is the need to preserve the utility of the Court's summary order procedure as a means of reducing the burden of the Court's caseload. We applaud the Second Circuit for providing reasoned explanations in its summary orders. Some overburdened courts of appeals have dispensed with almost any explanation -- a practice that is far less desirable.

We do not believe, however, that the limited citation of summary orders proposed here will affect the Court's ability to use the summary order procedure or reduce the time-saving benefits of this procedure to the Court. We recognize that the Court devotes less time and care in explaining its reasons for a decision in a summary order. It does not make the same effort to polish the language of its unpublished opinions as it would in issuing a published opinion. The Committee agrees that these features of the summary order must be respected and preserved, lest the utility of the summary order practice be jeopardized.

There is no reason to believe, however, that adoption of a rule permitting limited citation of summary orders would have any impact on the Court's ability to rely on summary orders. The Committee recommends adoption of a rule similar to the rules in effect in the Fourth, Sixth and Tenth Circuits -- which make clear that citation of summary orders is disfavored, and permit their citation only when the summary order has substantial persuasive value on a material issue and no published disposition would serve as well.^**** These restrictions on the citation of summary orders make explicit that summary orders are far less authoritative than published opinions, and should not be cited unless there is some particular justification for citing a summary order rather than the legal precedent on which it is based. If necessary, the Court could make it even more clear, in the text of the rule or in explanatory comments, that the Court's summary orders are not binding precedent; that the reasoning of summary orders is not authoritative; that a summary order should be cited, if at all, for its holding, not for its language or reasoning; and that it is generally inappropriate to quote the language of a summary order as the governing law.

With or without these additional restrictions, however, the type of rule we propose should eliminate any serious concern that permitting limited citation of summary orders would have any adverse effect on the Court's practices. Nor is there any reason to believe that the Court would respond to a rule permitting limited citation of summary orders by abandoning entirely the effort to give a reasoned explanation for its summary dispositions in favor of a simple one-sentence order (e.g., "affirmed"), as some have suggested.

As noted above, seven circuits already permit some citation of summary dispositions. There is no evidence that their experience with such rules has been negative, or that permitting limited citation of summary orders has had any adverse impact on the practice of those courts. The statistics provided by the Administrative Office of the Courts show that the Fourth, Fifth, Sixth and Tenth Circuits have continued to dispose of more than 70% of their appeals by unpublished opinions; indeed, each of these courts has decided a greater percentage of its appeals by unpublished opinion than the Second Circuit has, in each of the past three years. In addition, although the Fifth Circuit amended its rules to permit citation of summary orders filed after January 1, 1996, this has had no effect on the Court's practice: the Fifth Circuit has continued to dispose of approximately 78% of its appeals by unpublished opinions in each of the past four years, including the two years before the rules change and the two years after the rule was amended.

Similarly, the Tenth Circuit's amendment of its rule has not had any adverse effect on the Court's practice. On the contrary, the percentage of cases decided by summary order went up from 64% the year before the rule change to more than 70% in each of the last three years. A representative of the Tenth Circuit's Clerk's Office informed the Committee that the Court made the rule permanent at the beginning of 1996 because the Court's experience with the temporary rule had been positive, explaining that counsel had generally used unpublished dispositions in appropriate ways and that there had been no adverse effect on the Court's ability to use summary orders in appropriate cases.

Conclusion

The Committee on Federal Courts thus recommends to the Court of Appeals for the Second Circuit that Section 0.23 of its rules be amended as follows:

The last sentence of Section 0.23 should be deleted, and replaced with the following:

"Since the Court's summary orders, including any accompanying explanatory statement, do not constitute formal opinions of the Court and are not officially reported, citation of such summary orders in unrelated cases is disfavored, in this Court and in any district court within this Circuit. However, if counsel believes that an unpublished disposition of this Court or any other Court of Appeals has substantial persuasive value on a material issue, and that there is no published opinion that would serve as well, counsel may bring such summary disposition to the attention of the court. Counsel citing an unpublished disposition shall serve a copy thereof on all other parties and on the court."

July 17, 1998

APPENDIX A

Quoted below are the applicable rules of each of the Circuits regarding the citation of summary dispositions:

D.C. Circuit:

Rule 28(c):

(c) Citation to Unpublished Disposition. Unpublished orders or judgments of this court, including explanatory memoranda and sealed opinions, are not to be cited as precedent. The same rule applies to unpublished dispositions of district courts, and to unpublished dispositions of other courts of appeals if those appellate courts have a rule similar to this one. Counsel may refer to an unpublished disposition, however, when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant. In that event, counsel shall include in an appropriately labelled addendum to the brief a copy of each unpublished disposition cited therein.

First Circuit:

Rule 36.2(b)(6):

6. Unpublished opinions may be cited only in related cases. Only published opinions may be cited otherwise.

Third Circuit:

The Third Circuit does not have a rule limiting the citation of unpublished opinions. Section 5.2 of the Court's Internal Operating Procedures states that an opinion is to be published "when it has precedential or institutional value," and Section 5.3 states that "[a]n opinion which appears to have value only to the trial court or the parties is not ordinarily published." Section 5.8 of the Court's Internal Operating Procedures provides: "Because the court historically has not regarded unpublished opinions as precedents that bind the court, the court by tradition does not cite to its unpublished opinions as authority." However, this rule does not affect the citation of unpublished opinions by counsel, and there is no other rule which limits their citation. Accordingly, we are informed that counsel in the Third Circuit freely cite to unpublished opinions when relevant.

Fourth Circuit:

Rule 36(c).

Citation of Unpublished Dispositions

In the absence of unusual circumstances, this Court will not cite an unpublished disposition in any of its published opinions or unpublished dispositions. Citation of this Court's unpublished dispositions in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.

If counsel believes, nevertheless, that an unpublished disposition of any court 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 disposition may be cited if counsel serves a copy thereof on all other parties in the case and on the Court. Such service may be accomplished by including a copy of the disposition in an attachment or addendum to the brief pursuant to the procedures set forth in Local Rule 28(b).

Fifth Circuit:

The Fifth Circuit changed its rule slightly in an amendment to its rules effective January 1, 1996. Rule 47.5.3 relates to citation of unpublished opinions before that date, and provides:

47.5.3. Unpublished Opinions Issued Before January 1, 1996. Unpublished opinions issued before January 1, 1996 are precedent. However, because every opinion believed to have precedential value is published, such an unpublished opinion should normally be cited only when the doctrine of res judicata, collateral estoppel or law of the case is applicable (or similarly to show double jeopardy, abuse of the writ, notice, sanctionable conduct, entitlement to attorney's fees, or the like). If such an unpublished opinion is cited in a brief, motion or other document being submitted to the court, a copy shall be attached to each copy of the brief, motion or document.

The rule applicable to more recent summary dispositions is Rule 47.5.4, which provides:

47.5.4. Unpublished Opinions Issued On Or After January 1, 1996. Unpublished opinions issued on or after January 1, 1996 are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, abuse of the writ, notice, sanctionable conduct, entitlement to attorney's fees, or the like). An unpublished opinion may, however, be persuasive. An unpublished opinion may be cited, provided that, if cited in a brief, motion or other document being submitted to the court, a copy of the unpublished opinion shall be attached to each copy of the brief, motion or document.

Sixth Circuit:

Rule 24(c):

(c) Citation of Unpublished Decisions. Citation of unpublished decisions by counsel in briefs and oral arguments in this court and in the district courts within this circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.

If counsel believes, nevertheless, 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 counsel serves a copy thereof on all other parties in the case and on the court. Such service may be accomplished by including a copy of the decision in an addendum to the brief.

Seventh Circuit:

Rule 53(b)(2):

(2) Unpublished orders:

. . .

(iv) Except to support a claim of res judicata, collateral estoppel or law of the case, shall not be cited or used as precedent

(a) in any federal court within the circuit in any written document or in oral argument; or

(b) by any such court for any purpose.

Eighth Circuit:

Rule 28A(k):

(k) Citation of Unpublished Opinion. Unpublished 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, parties may cite any unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well. A party who cites an unpublished opinion in a document must attach a copy of the unpublished opinion to the document. A party who cites an unpublished opinion for the first time at oral argument must attach a copy of the unpublished opinion to the supplemental authority letters required by FRAP 28(j). When citing an unpublished opinion, a party must indicate the opinion's unpublished status.

Ninth Circuit:

Rule 36-3. Other Dispositions

Any disposition that is not an opinion or an order designated for publication under Circuit Rule 36-5 shall not be regarded as precedent and shall not be cited to or by this Court or any district court of the Ninth Circuit, either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Tenth Circuit:

Rule 36-3. Citation of unpublished opinions/orders and judgments

Unpublished orders and judgments of this court are not binding precedents, except under the doctrines of law of the case, res judicata, and collateral estoppel. Citation of unpublished orders and judgments is not favored. Nevertheless, an unpublished decision may be cited if it has persuasive value with respect to a material issue that has not been addressed in a published opinion and it would assist the court in its disposition. A copy of the decision must be attached to the brief or other document in which it is cited, or, if cited in oral argument, provided to the court and all other parties.

The current version of Rule 36-3 was put into effect on a temporary basis by a General Order of the Tenth Circuit filed November 29, 1993. Prior that date, the Tenth Circuit's rule apparently prohibited the citation of summary orders. The General Order provided as follows:

By this General Order the court suspends 10th Cir. R. 36.3 from January 1, 1994, to December 31, 1995, or until further order of court. While the rule is suspended, citation of unpublished opinions and orders and judgments shall be governed by the following provisions:

Unpublished opinions and orders and judgments of this court are not binding precedents, except under the doctrines of law of the case, res judicata, and collateral estoppel. Citation of these unpublished decisions is not favored. Nevertheless, if it is believed that an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, that decision may be cited, provided that a copy of the decision is attached to the brief or other document in which it is cited, or, if cited in oral argument, is provided to the court and all other parties.

During the pendency of this order, the court will evaluate the effectiveness of the provisions contained herein. The court invites interested parties to send written comments to the clerk of court. After evaluation, the court will decide whether the order should be vacated or its provisions should be incorporated into the rules of court.

After this two-year period of evaluation, the Tenth Circuit made the current Rule 36-3 permanent, effective January 1, 1996.

Eleventh Circuit:

Rule 36-2. Unpublished Opinions

An opinion shall be unpublished unless a majority of the panel decides to publish it. Unpublished opinions are not considered binding precedent. They may be cited as persuasive authority, provided that a copy of the unpublished opinion is attached to or incorporated within the brief, petition, motion or response in which such citation is made.

^Notes

^* Testimony of chief Judge Ralph K. Winter before the Senate Judiciary Subcommittee on Administrative Oversight, September 4, 1997.

^** Attached as Appendix A to this report is the text of the applicable rule in each of the other circuits.

^*** Of course, litigators may tend more readily to subscribe to Lexis or Westlaw, and a lawyer whose firm does not have computerized services may nonetheless be able to obtain access to one.

^**** The rules of the Fourth and Sixth Circuits refer to the "precedential" value of a prior unpublished decision, while the rules of the Fifth, Eighth and Tenth Circuits make clear that unpublished decisions are "not precedent" but may have "persuasive value." Since the Second Circuit's summary orders are explicitly not intended to be precedent, we recommend adoption of reference to their "persuasive value."

Dissenting Statement of Steven C. Krane, in which Jay L. Himes, Brian M. Cogan and Matthew Diller join.

A majority of the Committee on Federal Courts has recommended that the Court of Appeals for the Second Circuit amend its Rule 0.23 to permit citation, in certain circumstances, of summary orders of the Court and the written statements that are often appended to them. At present, these summary orders may not be cited or otherwise relied upon in unrelated cases in any court. A majority of the Committee believes that the inability to bring summary orders to the attention of the Court of Appeals, particularly in cases in which the summary order addresses so-called "indistinguishable facts" or represents the "only authority on point," leads to unnecessary briefing by the parties, wastes judicial time and effort, and creates the risk of inconsistent determinations. Notwithstanding these valid concerns, several members of the Committee disagree with the recommendation that the Second Circuit permit citation of its summary orders, and write separately to express their dissenting views.

I. Lack of Access to Unpublished Summary Orders

A fundamental premise of the majority’s recommendation is that summary orders are readily available to all litigants because they may be obtained through computerized services such as Westlaw and Lexis, which the majority characterizes as "widely available." The majority further observes that summary orders issued since late 1995 are available on the internet through the beneficence of Pace University Law School and the Touro Law Center. According to the majority, even a "lack of uniform availability should [not] affect a party’s ability to cite relevant authorities."

Notwithstanding the majority’s suppositions regarding the ubiquity of computerized research services, perhaps based on personal knowledge of the work habits of a relatively small segment of the bar, the available empirical evidence is to the contrary. In 1996, a survey was commissioned by the New York State Bar Association’s General Practice Section and Law Office Economics and Management Committee, and conducted by The Applied Statistics Laboratory of Ann Arbor, Michigan. Approximately 1,300 of the 60,000 members of the New York State Bar Association responded to the survey, which asked a series of questions regarding the economics of law practice in New York State. Among other things, the survey reflects that there is a significant portion of the bar of the State of New York that does not have access to computerized research services.

For example, of attorneys who practice in firms of five lawyers or fewer -- approximately 67% of the New York Bar -- the survey reports that only 29% have Lexis access and only 31% have Westlaw access. Since some lawyers may have just one of the services, and some may have both, it can be fairly concluded that somewhere between 40% and 70% of this significant segment of the New York bar does not have access to either of the major computerized legal research services.1 The thought that most small firm practitioners do not practice in the federal courts is the product of an unfortunate and unfounded stereotype, and further ignores the fact that even state court practitioners confront issues of federal law to which Second Circuit opinions may often be pertinent.2

We are aware that Pace University Law School and the Touro Law Center republish summary orders on their internet "web sites." Summary orders issued during the last two years or so are retrievable by name and docket number or through the use of rudimentary search engines. We have no reason to believe, however, that internet access is any more or less widespread among practicing attorneys than is Westlaw and Lexis access. Moreover, a change in Second Circuit practice should not be predicated on the hope that Pace and Touro will continue to provide this public service for the indefinite future.

Thus, there is no basis for concluding that lawyers in New York, Connecticut and Vermont have anything resembling reasonably universal access to unpublished summary orders. Requiring that the party citing a summary order provide a copy to the adversary is an imperfect solution, because the adversary still may not have the ability to perform the research necessary to find contradictory summary orders that may be favorable to its position. Nor does the suggestion made by some Committee members that lawyers lacking access to summary orders ask fellow attorneys for permission to use their on-line services, or otherwise rely on the "kindness of strangers," provide the level of access that would justify a change in the current rule.

Lastly, we do not find persuasive the argument that there are other forms of authorities, including slip opinions and other unreported decisions, that are also not readily accessible to less technologically advanced practitioners. That the "have nots" of the profession are disadvantaged in various ways is not a reason for the Second Circuit to add yet another inequity.

II. Negative Jurisprudential Effects of the Proposed Rule Change

A further reason for adherence to the current rule is the risk that permitting citation of Second Circuit summary orders may have a negative impact on the effective rendition of justice in the Court. A major purpose of summary orders, as we understand it, is to provide the litigants and their counsel, who have spent substantial time and money briefing and arguing an appeal, with an explanation of the reasons underlying the Court’s decision. Likewise, summary orders explaining the basis of the decision are useful to the Supreme Court when certiorari petitions are filed, and to the district court to the extent necessary for the conduct of future proceedings in the particular case. Whereas considerable time and care are devoted to the preparation of published opinions, summary orders can be drafted more expeditiously without the concern that lawyers and lower courts will scrutinize every word or turn of a phrase and rely on them in future cases, perhaps in ways never intended by their authors.

We are concerned that, if citation of summary orders is permitted, the Second Circuit may substantially reduce the number of cases in which they are issued, relying instead on affirmances without opinion (or severely truncated opinions). Alternatively, and notwithstanding its already oppressive caseload, the Court may decide to write full opinions on more appeals, resulting in significant delays in dispositions. We do not believe that these prospects, neither of which are desirable, are worth the perceived incremental benefits that citation of summary orders may provide.

* * *

For the foregoing reasons, we respectfully dissent from the recommendation of the Committee on Federal Courts, and urge the Second Circuit to retain its current rule. At the very least, we urge the Court not to make such a significant change in its procedures without due regard for the concerns set forth above.

July 17, 1998

Notes

1 We do not have comparable figures for lawyers in Vermont or Connecticut, who of course also practice in the Second Circuit, but have no reason to believe that Westlaw and Lexis are any more widely available in those states than in New York

2 Even for the approximately 15% of the New York bar who practice in large firms (20 lawyers or more), Westlaw and Lexis are not universally available. The survey reports that only 82% of large firms have Westlaw, and 78% have Lexis.

Dissenting Statement of Brian M. Cogan, in which Jay L. Himes, Steven C. Krane and Matthew Diller join.

The hypothesis of the Committee's opinion is that more citeable decisions is better, in that it increases predictability and promotes consistency. We disagree with the hypothesis. We also believe that increasing the volume of citeable decisions in the manner suggested by the Committee will have a deleterious effect on the administration of justice. We therefore respectfully dissent from the Committee's recommendation.

There can be no mistake about the impact of the Committee's recommendation on the volume of law that litigants will have to cite, apply and distinguish: it will increase exponentially, at a rate that is unprecedented in Anglo-American jurisprudence. The statistics cited by the Committee show that well in excess of 70% of all Circuit opinions are summary decisions, the citation of which is restricted or prohibited; converting to a full citation system would by definition increase the body of authoritative law by an amount in excess of 300% of the present volume.

The dramatic increase in citeable case law has cost implications from both a time and materials standpoint. As to the latter, although electronic storage and retrieval will become increasingly accessible to the public and private Bar, there is a very meaningful cost associated with such services. As to the former, there is obviously an increased expense in reading, analyzing, applying, distinguishing, and briefing case law. True, since unpublished decisions are presently available electronically, present practice entails some level of cost when research leads to unpublished decisions. However, clients are presently able to take steps to avoid paying for analysis of law with limited precedential value; indeed, some institutional clients decline to pay for any electronic research at all. Moreover, we think it fairly obvious that whatever the present cost incurred in reviewing summary orders, it would be dwarfed if this body of unciteable law suddenly became transformed from advisory, or illustrative, to potentially authoritative. One way or another, these extra costs in time and materials will be borne by public and private clients.

The additional burden on judges, lawyers and ultimately the public could be justified if, as the Committee asserts, it is frequently the case that a Court "has previously ruled by summary order on the precise contention being made in a pending case, on indistinguishable facts," or that a summary order is "the only authority on point." We do not suggest that this never happens, but we believe that, by and large, the quest for the "indistinguishable case" is largely illusory. It is rare indeed that opposing lawyers will agree that a decision is dispositive of the issue raised in their case; if they do, the only issue between them will be the determination of disputed facts at trial, not legal principles. Yet most federal appeals are focused on how established legal principles apply to facts determined at trial, since appellate review of facts is limited.

The paucity of "indistinguishable cases" is attributable to factors too numerous to list. The variations in human conduct are infinite; the creativity of lawyers in finding distinctions in case law is virtually unlimited; and the subjective judgment of a lawyer on what is or is not a "distinguishable" case will be informed by that lawyer's own biases and the tension between the lawyer's role as advocate and counselor. This is no less true of the process of judicial decision making. It is perfectly conceivable that a Court's decision, whether published or unpublished, will omit reference to a fact because the Court deemed that fact immaterial. Yet an attorney in a subsequent, similar case may attempt to distinguish his case based upon the very fact deemed so immaterial to the Court in the prior decision that it was not even mentioned.

The particular rule advanced by the Committee, permitting citation to a summary order if an attorney believes it has "substantial persuasive value on a material issue and no published disposition would serve as well," exposes this inherently subjective process of analyzing case law. Not only is the attorney fully subject to subjective limitations, but the attorney must anticipate that one or more judges might find a summary order, effectively presented, even more applicable than does that attorney. Few attorneys would err on the side of not citing a case that a Court may or may not conclude has substantial persuasive authority. And the absence in the proposed rule of any enforcement mechanism further effectuates the removal of any practical restriction in relying upon summary orders. We thus have little doubt that the condition set forth in the rule would quickly consume the restriction it supposedly imposes, as we suspect it has in other Circuits with similar provisions.

Our view is not altered by the relaxation or elimination of restrictions on citing unpublished decisions in several other Circuits. The absence of cataclysmic results in those Circuits does not answer the question of whether the increased costs caused by the weight of an extra body of law is offset by efficiencies gained in those cases where a party finds an unpublished case "directly on point." Both of these factors defy quantification and thus defy comparison. However, it seems to us an extraordinary event for any Circuit to officially report a decision that rests wholly upon an earlier, unpublished decision that the Court believes is "on all fours." The absence of such officially reported decisions suggests that unpublished authority is rarely dispositive.

As suggested above, it would be difficult if not impossible to empirically test whether a larger body of case law facilitates rather than complicates advocacy and judicial decision making. But we think that most practitioners and judges, reflecting on their experience over the decades, intuitively believe that more does not mean better or easier. The fact is that, even focusing solely on published opinions, there has been an explosion of decisional law over the last three decades commensurate, of course, with the explosion of litigation. Few would contend that this increase has led to greater ease, certainty, or predictability with regard to disposing of cases, nor that there are more "indistinguishable" cases now than there were before. Many would contend that the greater volume of case law has had just the opposite effect, although there are no doubt a number of other factors adding to the increasing complexity of the law.

We thus do not believe that increasing the body of authoritative case law, as the Committee recommends, will have the salutary effect it envisions. Rather, we believe it will increase the tendency of lawyers to bicker over whose horseshoe has landed closer to the stake, distracting attention from the process of applying established principles of law, or developing them for application, to the facts of the particular case in order to achieve justice in that case. The unusual instance in which an indistinguishable, unpublished case actually exists does not in our view justify the increased burden that would arise from an increased volume of law.

Finally, we believe that dramatic increases in the volume of citeable law have a negative impact on stare decisis generally. Again speaking solely intuitively, it seems to us that the "shelf life" of case law has diminished over the last few decades as its volume has increased. Lawyers have come to take more comfort in newness than close analysis of older, but perhaps well-reasoned, authority. Indeed, like its pursuit of the "indistinguishable case", the Committee's trepidation of cases in which there is no "authority on point" except a summary order indicates the increased reluctance to build on the existing foundation of the law. Yet the credibility of decisional law as legal authority rests in substantial part on its time-tested nature, its fits and starts, its often painful application by trial courts, its slow evolution based on the addition or change of one fact at a time, over time. The constant flood of new authority, which would be dramatically compounded by the Committee's recommendation, compromises this process.

We note that the recent controversy over the confirmation of Circuit Judges by the Senate was premised, in part, on a substantial if not majority sentiment that the last thing our judicial system presently needs is more judge-made law. Without becoming immersed in the details of this important debate, it seems to us that Judges should at least be free to carefully select those relatively few decisions that would serve a jurisprudential purpose for inclusion in the body of the law as legal authority, and to exclude those which would not. We therefore respectfully dissent from the Committee's recommendation.

July 17, 1998